Page 1 of 96

bridge, the defendant was nevertheless civilly liable for

EN BANC

the legal damages resulting from the collision, as he

[G.R. No. 12219. March 15, 1918.]

AMADO

PICART,

had a fair opportunity to avoid the accident after he

plaintiff-appellant,

vs.

FRANK

SMITH, Jr., defendant-appellee.

himself in a position of greater safety.

DECISION

G. E. Campbell for appellee.

STREET, J p:

SYLLABUS
NEGLIGENCE; CRITERION FOR DETERMINING

EXISTENCE

OF

NEGLIGENCE.

The

test

for

determining whether a person is negligent in doing an

act whereby injury or damage results to the person or
property of another is this: Would a prudent man, in
the position of the person to whom negligence is
attributed, foresee harm to the person injured as a
reasonable consequence of the course about to be
pursued. If so, the law imposes a duty on the actor to
refrain from that course or to take precaution against
its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm,
followed by the ignoring of the admonition born of this
prevision, is the constitutive fact in negligence.
2.

ID.;

SUCCESSIVE

CONTRIBUTORY
NEGLIGENT

ACTS.

NEGLIGENCE;

Where

In this action the plaintiff, Amado Picart, seeks to

recover of the defendant, Frank Smith, jr., the sum of
P31,100, 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

approached
both

parties are guilty of negligence, but the negligent act of

one succeeds that of the other by an appreciable
interval of time, the one who has the last reasonable
opportunity 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.
3.

plaintiff and failed to avail himself of that opportunity;

while the plaintiff could by no means then place

Alejo Mabanag for appellant.

1.

realized the situation created by the negligence of the

ID.; ID.; CASE AT BAR. The plaintiff was

riding a pony on a bridge. Seeing an automobile ahead

he improperly pulled his horse over to the railing on
the right. The driver of the automobile, however, guided
his car toward the plaintiff without diminution of speed
until he was only a few feet away. He then turned to the
right but passed so closely to the horse that the latter
being frightened, jumped around and was killed by the
passing car. Held: That although the plaintiff was
guilty of negligence in being on the wrong side of the

from

half
the

way

across,

opposite

the

defendant

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 4.08
meters. As the automobile approached, the defendant

Page 2 of 96
guided it toward his left, that being the proper side of

of greater safety. The control of the situation had then

the road for the machine. In so doing the defendant

passed entirely to the defendant; and it was his duty

assumed that the horseman would move to the other

either to bring his car to an immediate stop or, seeing

side. The pony had not as yet exhibited fright, and the

that there were no other persons on the bridge, to take

rider had made no sign for the automobile to stop.

the other side and pass sufficiently far away from the

Seeing that the pony was apparently quiet, the

horse to avoid the danger of collision. Instead of doing

defendant, instead of veering to the right while yet

this, the defendant ran straight on until he was almost

some distance away or slowing down, continued to

upon the horse. He was, we think, deceived into doing

approach directly toward the horse without diminution

this by the fact that the horse had not yet exhibited

of speed. When he had gotten quite near, there being

fright. But in view of the known nature of horses, there

then no possibility of the horse getting across to the

was an appreciable risk that, if the animal in question

other side, the defendant quickly turned his car

was unacquainted with automobiles, he might get

sufficiently to the right to escape hitting the horse

excited and jump under the conditions which here

alongside of the railing where it was then standing; but

confronted him. When the defendant exposed the horse

in so doing the automobile passed in such close

and rider to this danger he was, in our opinion,

proximity to the animal that it became frightened and

negligent in the eye of the law.

turned its body across the bridge with its head toward
the railing. In so doing, it was struck on the hock of
the left hind leg by the flange of the car and the limb
was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the
case we believe that when the accident occurred the
free

space

where

the

pony

stood

between

the

automobile and the railing of the bridge was probably

less than one and one half meters. As a result of its
injuries

the

horse

died.

The

plaintiff

received

contusions which caused temporary unconsciousness

and required medical attention for several days.

The test by which to determine the existence of

negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution
which an ordinarily prudent person would have used
in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The
existence

of

negligence

in

given

case

is

not

determined by reference to the personal judgment of

the actor in the situation before him. The law considers

The question presented for decision is whether or not

what would be reckless, blameworthy, or negligent in

the defendant in maneuvering his car in the manner

the man of ordinary intelligence and prudence and

above described was guilty of negligence such as gives

determines liability by that.

rise to a civil obligation to repair the damage done; and

we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right
to assume that the horse and 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

The question as to what would constitute the conduct

of a prudent man in a given situation must of course
be always determined in the light of human experience
and in view of the facts involved in the particular case.
Abstract speculation cannot here be of much value but
his much can be profitably said: Reasonable men
govern their conduct by the circumstances which are
before them or known to them. They are not, and are
not supposed to be, omniscient of the future. Hence
they can be expected to take care only when there is
something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration,

Page 3 of 96
foresee harm as a result of the course actually

which would otherwise have been assessed wholly

pursued? If so, it was the duty of the actor to take

against the other party. The defendant company had

precautions to guard against that harm. Reasonable

there employed the plaintiff, a laborer, to assist in

foresight of harm, followed by the ignoring of the

transporting iron rails from a barge in Manila harbor to

suggestion born of this prevision, is always necessary

the company's yards located not far away. The rails

before negligence can be held to exist. Stated in these

were conveyed upon cars which were hauled along a

terms,

the

narrow track. At a certain spot near the water's edge

existence of negligence in a given case is this: Conduct

the track gave way by reason of the combined effect of

is said to be negligent when a prudent man in the

the weight of the car and the insecurity of the road

position of the tortfeasor would have foreseen that an

bed. The car was in consequence upset; the rails slid

effect harmful to another was sufficiently probable to

off; and the plaintiff's leg was caught and broken. It

warrant his foregoing the conduct or guarding against

appeared in evidence that the accident was due to the

its consequences.

effects of a typhoon which had dislodged one of the

the

proper

criterion

for

determining

Applying this test to the conduct of the defendant in

the present case we think that negligence is clearly
established. A prudent man, placed in the position of
the defendant, would, in our opinion, have recognized
that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to
the horse and rider as a reasonable consequence of
that course. Under these circumstances the law
imposed on the defendant the duty to guard against
the threatened harm.
It goes without saying that the plaintiff himself was not
free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the
road. But as we have already stated, the defendant was
also negligent; and in such case the problem always is
to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of
the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence
of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails
to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.
The decision in the case of Rakes vs. Atlantic, Gulf and
Pacific Co.(7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held
that while contributory negligence on the part of the
person injured did not constitute a bar to recover, it
could be received in evidence to reduce the damages

supports of the track. The court found that the

defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the
car instead of being in front or behind. It was held that
while the defendant was liable to the plaintiff by reason
of its negligence in having failed to keep the track in
proper repair, nevertheless the amount of the damages
should be reduced on account of the contributory
negligence of the plaintiff. As will be seen the
defendant's negligence in that case consisted in an
omission only. The liability of the company arose from
its responsibility for the dangerous condition of its
track. In a case like the one now before us, where the
defendant was actually present and operating the
automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the
respective parties in order to apportion the damage
according to the degree of their relative fault. It is
enough to say that the negligence of the defendant was
in this case the immediate and determining cause of
the accident and that the antecedent negligence of the
plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in
the special defense pleaded in the defendant's answer,
to the effect that the subject matter of the action had
been previously adjudicated in the court of a justice of
the peace. In this connection it appears that soon after
the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of

Page 4 of 96
the peace charging the defendant with the infliction of

succeeded that of the plaintiff by an appreciable

serious injuries (lesiones graves). At the preliminary

interval of time, and that at that moment the plaintiff

investigation the defendant was discharged by the

had no opportunity to avoid the accident.

magistrate

consequently, the "last clear chance" rule is applicable.

and

the

proceedings

were

dismissed.

Conceding that the acquittal of the defendant at a trial

In other words, when a traveller has reached a point

upon the merits in a criminal prosecution for the

where he cannot extricate himself and vigilance on his

offense mentioned would be res adjudicata upon the

part will not avert the injury, his negligence in reaching

question of his civil liability arising from negligence

that position becomes the condition and not the

a point upon which it is unnecessary to express an

proximate cause of the injury and will not preclude a

opinion the action of the justice of the peace in

recovery. (Note especially Aiken vs. Metcalf [1917], 102

dismissing

Atl., 330.)

the

criminal

proceeding

upon

the

preliminary hearing can have no such effect. (See U.S.

vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment
of the lower court must be reversed, and judgment is
here

rendered

that

the

plaintiff

recover

of

the

2.
[G.R. No. 39587. March 24, 1934.]

defendant the sum of two hundred pesos (P200), with

ALEKO E. LILIUS, ET AL., plaintiffs-appellants, vs.

costs of both instances. The sum here awarded is

THE

estimated to include the value of the horse, medical

expenses

of

the

plaintiff,

the

loss

or

damage

occasioned to articles of his apparel, and lawful

interest on the whole to the date of this recovery. The
other damages claimed by the plaintiff are remote or
otherwise of such characters as not to be recoverable.
So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and
Fisher, JJ., concur.

MANILA

RAILROAD

COMPANY,

defendant-

appellant.
Harvey & O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
SYLLABUS
1.

NEGLIGENCE;

RAILROAD

COMPANY;

DAMAGES. A railroad company which does not

install a semaphore at a crossing and does not see to it

Johnson, J., reserves his vote.

that its flagman and switchman faithfully complies

Separate Opinions

arrives, is guilty of negligence and is civilly liable for

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to
concur with the judgment in this case. I do so because
of my understanding of the "last clear chance" rule of
the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked

with his duty of remaining at the crossing when a train

damages suffered by a motorist and his family who
cross its line without negligence on their part.
2.

ID.; ID.; ID.; AMOUNT OF DAMAGES. An

indemnity of P10,000 for a permanent deformity on the

face and left leg, suffered by a young and beautiful
society woman, is not excessive.

where the negligence of the plaintiff is concurrent with

3.

that of the defendant. Again, if a traveller when he

permanent deformity on the face and legs of a four-year

reaches the point of collision is in a situation to

old girl belonging to a well-to-do family, is not

extricate himself and avoid injury, his negligence at

excessive.

that point will prevent a recovery. But Justice Street

finds as a fact that the negligent act of the defendant

ID.; ID.; ID.; ID. an indemnity of P5,000 for a

Page 5 of 96
4.

ID.; ID.; ID.; PROOF OF DAMAGES. In order

that a husband may recover damages for deprivation of

his wife's assistance during her illness from an
accident, it is necessary for him to prove the existence
of such assistance and his wife's willingness to
continue rendering the same had she not been
prevented from so doing by her illness.

sum of P50,000 plus legal interest thereon from the

date of the filing of the complaint, with costs.
The

defendant

the

Manila

Railroad

Company,

answering the complaint, denies each and every

allegation thereof and, by way of special defense,
alleges that the plaintiff Aleko E. Lilius, with the
cooperation of his wife and co-plaintiff, negligently and

DECISION

recklessly drove his car, and prays that it be absolved

from the complaint.

VILLA-REAL, J p:
This case involves two appeals, one by the defendant
the Manila Railroad Company, and the other by the
plaintiffs Aleko E. Lilius et al., from the judgment

The following facts have been proven at the trial, some

without question and the others by a preponderance of
evidence, to wit:

rendered by the Court of First Instance of Manila, the

The plaintiff Aleko E. Lilius has, for many years, been a

dispositive part of which reads as follows:

well-known

"Wherefore,

judgment

is

rendered

ordering

the

defendant company to pay to the plaintiffs, for the

purposes above stated, the total amount of P30,865,
with the costs of the suit. And although the suit

and

reputed

journalist,

author

and

photographer. At the time of the collision in question,

he was a staff correspondent in the Far East of the
magazines The American Weekly of New York and The
Sphere of London.

brought by the plaintiffs has the nature of a joint

Some of his works have been translated into various

action, it must be understood that of the amount

languages. He had others in preparation when the

adjudicated to the said plaintiffs in this judgment, the

accident occurred. According to him, his writings

sum of P10,000 personally belongs to the plaintiff

netted him a monthly income of P1,500. He utilized the

Sonja Maria Lilius; the sum of P5,000, to the plaintiff

linguistic ability of his wife Sonja Maria Lilius, who

Brita Marianne Lilius; the sum of P250, to Dr. Marfori

translated

of the Calauan Hospital, Province of Laguna, and the

German, and Swedish. Furthermore, she acted as his

balance to the plaintiff Aleko E. Lilius."

secretary.

In support of its appeal, the appellant the Manila

At about 7 o'clock on the morning of May 10, 1931, the

Railroad Company assigns nine alleged errors as

plaintiff, his wife Sonja Maria Lilius, and his 4-year old

committed by the trial court in its said judgment,

daughter Brita Marianne Lilius, left Manila in their

which will be discussed in the course of this decision.

Stude-baker car driven by the said plaintiff Aleko E.

As a ground of their appeal, the appellants Aleko E.

Lilius et al., in turn, assign two alleged errors as
committed by the same court a quo in its judgment in
question, which will be discussed later.
This case originated from a complaint filed by Aleko E.
Lilius et al., praying, under the facts therein alleged,
that the Manila Railroad Company be ordered to pay to
said plaintiffs, by way of indemnity for material and
moral damages suffered by them through the fault and
negligence of the said defendant entity's employees, the

his

articles

and

books

into

English,

Lilius for the municipality of Pagsanjan, Province of

Laguna, on a sight-seeing trip. It was the first time
that he made said trip although he had already been to
many places, driving his own car, in and outside the
Philippines.

Where

the

road

was

clear

and

unobstructed, the plaintiff drove at the rate of from 19

to 25 miles an hour. Prior thereto, he had made the
trip as far as Calauan, but never from Calauan to
Pagsanjan, via Dayap. He was entirely unacquainted
with the conditions of the road at said points and had
no knowledge of the existence of a railroad crossing at

Page 6 of 96
Dayap. Before reaching the crossing in question, there

operations on the left leg for the purpose of joining the

was nothing to indicate its existence and inasmuch as

fractured bones but said operations notwithstanding,

there were many houses, shrubs and trees along the

the leg in question still continues deformed. In the

road, it was impossible to see an approaching train. At

opinion of Dr. Waterous, the deformity is permanent in

about seven or eight meters from the crossing, coming

character and as a result the plaintiff will have some

from Calauan, the plaintiff saw an autotruck parked on

difficulty in walking. The lacerated wound, which she

the left side of the road. Several people, who seemed to

received on her forehead, has left a disfiguring scar.

have alighted from the said truck, were walking on the

opposite side. He slowed down to about 12 miles an
hour and sounded his horn for the people to get out of
the way. With his attention thus occupied, he did not
see the crossing but he heard two short whistles.
Immediately afterwards, he saw a huge black mass
fling itself upon him, which turned out to be locomotive
No. 713 of the defendant company's train coming
eastward from Bay to Dayap station. The locomotive
struck the plaintiff's car right in the center. After
dragging the said car a distance of about ten meters,
the locomotive threw it upon a siding. The force of the
impact was so great that the plaintiff's wife and
daughter were thrown from the car and were picked up
from the ground unconscious and seriously hurt. In
spite of the efforts of engineer Andres Basilio, he was
unable to stop the locomotive until after it had gone
about seventy meters from the crossing.

entered St. Paul's Hospital in the City of Manila where

they were treated by Dr. Waterous. The plaintiff Aleko
E. Lilius suffered from a fractured nose, a contusion
above the left eye and a lacerated wound on the right
leg, in addition to multiple contusions and scratches
on various parts of the body. As a result of the
accident, the said plaintiff was highly nervous and very
easily irritated, and for several months he had great
difficulty in concentrating his attention on any matter
and could not write articles nor short stories for the
newspapers and magazines to which he was a
contributor, thus losing for some time his only means
of livelihood.

of the pelvic bone, the tibia and fibula of the right leg,
below the knee, and received a large lacerated wound
forehead.

side of the face, in addition to fractures of both legs,

above and below the knees. Her condition was serious
and, for several days, she was hovering between life
and death. Due to a timely and successful surgical
operation, she survived her wounds. The lacerations
received by the child have left deep scars which will
permanently disfigure her face, and because of the
fractures of both legs, although now completely cured,
she will be forced to walk with some difficulty and
continuous extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign
of the existence of the crossing, nor was there anybody
to warn the public of approaching trains. The flagman
or switchman arrived after the collision, coming from
in the other, both of which were wound on their
respective sticks. The said flagman and switchman had
many times absented himself from his post at the
crossing upon the arrival of a train. The train left Bay
station a little late and therefore traveled at great
speed.
Upon examination of the oral as well as of the
documentary evidence which the parties presented at
the trial in support of their respective contentions, and
after taking into consideration all the circumstances of
the case, this court is of the opinion that the accident
was due to negligence on the part of the defendantappellant company, for not having had on that occasion
any semaphore at the crossing at Dayap, to serve as a

The plaintiff Sonja Maria Lilius suffered from fractures

the

wounds, one on the forehead and the other on the left

the station with a red flag in one hand and a green one

On the afternoon of the same day, the plaintiff's

on

The child Brita Marianne Lilius received two lacerated

She

underwent

two

surgical

warning to passers-by of its existence in order that

they might take the necessary precautions before
crossing the railroad; and, on the part of its employees

the

flagman

and

switchman,

for

not

having

remained at his post at the crossing in question to

Page 7 of 96
warn

passers-by

of

the

approaching

train;

the

hand side of the road seven or eight meters from the

stationmaster, for failure to send the said flagman and

place where the accident occurred, and upon the

switchman to his post on time; and the engineer, for

persons who appeared to have alighted from the said

not having taken the necessary precautions to avoid an

truck. If he failed to stop, look and listen before going

accident, in view of the absence of said flagman and

over the crossing, in spite of the fact that he was

switchman, by slackening his speed and continuously

driving at 12 miles per hour after having been free from

ringing the bell and blowing the whistle before arriving

obstacles, it was because, his attention having been

at the crossing. Although it is probable that the

occupied in attempting to go ahead, he did not see the

defendant-appellant entity employed the diligence of a

crossing in question, nor anything, nor anybody

good father of a family in selecting its aforesaid

indicating its existence, as he knew nothing about it

employees, however, it did not employ such diligence in

beforehand. The first and only warning, which he

supervising their work and the discharge of their

received of the impending danger, was two short, blows

duties because, otherwise, it would have had a

from

semaphore or sign at the crossing and, on previous

preceding the collision and when the accident had

occasions as well as on the night in question, the

already become inevitable.

flagman and switchman would have always been at his

post at the crossing upon the arrival of a train. The
diligence of a good father of a family, which the law
requires in order to avoid damage, is not confined to
the careful and prudent selection of subordinates or
employees but includes inspection of their work and
supervision of the discharge of their duties.

recover indemnity for damages from the person liable

therefor, it is not enough that the latter has been guilty
of negligence, but it is also necessary that the said
has

not,

through

his

own

negligence,

contributed to the accident, inasmuch as nobody is a

guarantor

of

his

neighbor's

personal

whistle

of

the

locomotive

immediately

In view of the foregoing considerations, this court is of

the opinion that the defendant the Manila Railroad
Company alone is liable for the accident by reason of
its own negligence and that of its employees, for not
having employed the diligence of a good father of a
family in the supervision of the said employees in the
discharge of their duties.

However, in order that a victim of an accident may

victim

the

safety

and

property, but everybody should look after them,

employing the care and diligence that a good father of a
family should apply to his own person, to the members
of his family and to his property, in order to avoid any

The next question to be decided refers to the sums of

money fixed by the court a quo as indemnities for
damages which the defendant company should pay to
the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius,
although this court believes his claim of a net income
of P1,500 a month to be somewhat exaggerated,
however, the sum of P5,000, adjudicated to him by the
trial court as indemnity for damages, is reasonable.

damage. It appears that the herein plaintiff-appellant

As to the sum of P10,635 which the court awards to

Aleko E. Lilius took all precautions which his skill and

the plaintiffs by way of indemnity for damages, the

the presence of his wife and child suggested to him in

different items thereof representing doctor's fees,

order that his pleasure trip might be enjoyable and

hospital and nursing services, loss of personal effects

have a happy ending, driving his car at a speed which

and torn clothing, have duly been proven at the trial

prudence demanded according to the circumstances

and the sum in question is not excessive, taking into

and conditions of the road, slackening his speed in the

consideration the circumstances in which the said

face of an obstacle and blowing his horn upon seeing

expenses have been incurred.

persons on the road, in order to warn them of his

approach and request them to get out of the ways, as
he did when he came upon the truck parked on the left

Taking into consideration the fact that the plaintiff

Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius

Page 8 of 96
is in the language of the court, which saw her at the

for the reduction of said indemnity was denied,

trial "young and beautiful and the big scar, which

declaring it to be reasonable.

she has on her forehead caused by the lacerated

wound received by her from the accident, disfigures her
face and that the fracture of her left leg has caused a
permanent deformity which renders it very difficult for
her to walk", and taking into further consideration her
social standing, neither is the sum of P10,000,
adjudicated to her by the said trial court by way of
indemnity for patrimonial and oral damages, excessive.
In the case of Gutierrez vs. Gutierrez (56 Phil., 177),
the right leg of the plaintiff Narciso Gutierrez was
fractured as a result of a collision between the autobus
in which he was riding and the defendant's car, which
fracture required medical attendance for a considerable
period of time. On the day of the trial the fracture had
not yet completely healed but it might cause him
permanent lameness. The trial court sentenced the
defendants to indemnity him in the sum of P10,000
which this court reduced to P5,000, in spite of the fact
that the said plaintiff therein was neither young nor
good-looking, nor had be suffered any facial deformity,

As to the amount of P10,000 claimed by the plaintiff

Aleko E. Lilius as damages for the loss of his wife's
services in his business as journalist and author,
which services consisted in going over his writings,
translating them into English, German and Swedish,
and acting as his secretary, in addition to the fact that
such services formed part of the work whereby he
realized a net monthly income of P1,500, there is no
sufficient evidence of the true value of said services
nor to the effect that he needed them during her
illness and had to employ a translator to act in her
stead.
The plaintiff Aleko E. Lilius also seeks to recover the
sum of P2,500 for the loss of what is called AngloSaxon common law "consortium" of his wife, that is,
"her services, society and conjugal companionship", as
a result of personal injuries which she had received
from the accident now under consideration.

nor did he have the social standing that the herein

In the case of Goitia vs. Campos Rueda (35 Phil., 252,

plaintiff-appellant Sonja Maria Lilius enjoys.

255, 256), this court, interpreting the provisions of the

As to the indemnity of P5,000 in favor of the child Brita

Marianne Lilius, daughter of Aleko E. Lilius and Sonja
Maria Lilius, neither is the same excessive, taking into
consideration the fact that the lacerations received by

Civil Marriage Law of 1870, in force in these Islands

with reference to the mutual rights and obligations of
the spouses contained in articles 44-48 thereof, said
as follows:

her have left deep scars that permanently disfigure her

"The above quoted provisions of the Law of Civil

face

legs

Marriage and the Civil Code fix the duties and

permanently render it difficult for her to walk freely,

obligations of the spouses. The spouses must be

continuous extreme care being necessary in order to

faithful to, assist, and support each other. The

keep her balance in addition to the fact that all of this

husband must live with and protect his wife. The wife

unfavorably

must obey and live with her husband and follow him

and

that

the

and

to

fractures

great

of

both

extent

her

affect

her

matrimonial future.
With respect to the plaintiffs' appeal, the first question

when he changes his domicile or residence, except

when he removes to a foreign country . . ."

to be decided is that raised by the plaintiff Aleko E.

Therefore, under the law and the doctrine of this court,

Lilius relative to the insufficiency of the sum of P5,000

one of the husband's rights is to count on his wife's

which the trial court adjudicated to him by way of

assistance. This assistance comprises the management

indemnity for damages consisting in the loss of his

of the home and the performance of household duties,

income as journalist and author as a result of his

including the care and education of the children and

illness. This question has impliedly been decided in the

attention to the husband upon whom primarily

negative when the defendant-appellant entity's petition

devolves the duty of supporting the family of which he

Page 9 of 96
is

the

head.

When

was

does not see to it that its flagman and switchman

circumscribed to the home, it was not difficult to

faithfully complies with his duty of remaining at the

assume, by virtue of the marriage alone, that she

crossing when a train arrives, is guilty of negligence

performed

all

physical

and is civilly liable for damages suffered by a motorist

incapacity

always

husband's

and his family who cross its line without negligence on

prejudice

inasmuch

the

said

the

wife's

tasks

redounded
as

it

mission

and
to

her

the

deprived

him

of

her

their part; (2) that an indemnity of P10,000 for a

assistance. However, nowadays when women, in their

permanent deformity on the face and on the left leg,

desire to be more useful to society and to the nation,

suffered by a young and beautiful society woman, is

are demanding greater civil rights and are aspiring to

not excessive; (3) that an indemnity of P5,000 for a

become man's equal in all the activities of life,

permanent deformity on the face and legs of a four-year

commercial and industrial, professional and political,

old girl belonging to a well-to-do family, is not

many of them spending their time outside the home,

excessive; and (4) that in order that a husband may

engaged in their businesses, industry, profession and

recover damages for deprivation of his wife's assistance

within a short time, in politics, and entrusting the care

during her illness from an accident, it is necessary for

of their home to a housekeeper, and their children, if

him to prove the existence of such assistance and his

not to a nursemaid, to public or private institutions

wife's willingness to continue rendering it had she not

which take charge of young children while their

been prevented from so doing by her illness.

mothers are at work, marriage has ceased to create the

presumption that a woman complies with the duties to
her husband and children, which the law imposes
upon her, and he who seeks to collect indemnity for
damages resulting from deprivation of her domestic
services must prove such services. In the case under
consideration, apart from the services of his wife Sonja
Maria Lilius as translator and secretary, the value of
which has not been proven, the plaintiff Aleko E. Lilius
has not presented any evidence showing the existence
of domestic services and their nature, rendered by her
prior to the accident in order that it may serve as a
basis in estimating their value.
Furthermore, inasmuch as a wife's domestic assistance
and conjugal companionship are purely personal and
voluntary acts which neither of the spouses may be
compelled to render (Arroyo vs. Vazquez de Arroyo, 42
Phil., 54), it is necessary for the party claiming
indemnity for the loss of such services to prove that
the person obliged to render them had done so before
he was injured and that he would be willing to

The plaintiffs-appellants are entitled to interest of 6 per

cent per annum on the amount of the indemnities
adjudicated to them, from the date of the appealed,
judgment

until

this

judgment

becomes

final,

in

accordance with the provisions of section 510 of Act

No. 190.
Wherefore, not finding any error in the judgment
appealed from, it is hereby affirmed in toto, with the
sole modification that interest of 6 per cent per annum
from the date of the appealed judgment until this
judgment

becomes

final

will

be

added

to

the

indemnities granted, with the costs of both instances

against the appellant. So ordered.
Malcolm, Hull, Imperial, and Gaddard, JJ., concur.

3.
FIRST DIVISION
[G.R. No. L-40570. January 30, 1976.]

continue rendering them had he not been prevented

TEODORO C. UMALI, petitioner, vs. HON. ANGEL

from so doing.

BACANI, in his capacity as Presiding Judge of

In view of the foregoing considerations this court is of

the opinion and so holds: (1) That a railroad company
which has not installed a semaphore at a crossing and

Branch IX of the Court of First Instance of

Pangasinan and FIDEL H. SAYNES, respondents.
Julian M. Armas for the petitioner.

Page 10 of 96
Antonino de los Reyes for the private respondent.
SYNOPSIS
Defendant as owner and manager of the Alcala Electric
Plant was ordered to pay damages by the lower court
which found the death by electrocution of a 3 year old
boy as due to defendant's fault or negligence. Petitioner
claims that he could not be held liable under the
concept of quasi-delict or tort as owner and manager
because the proximate cause of the boy's death by
electrocution could not be due to any negligence on his
part, but rather to a fortuitous event the storm that
caused the banana plants to fall and cut the electric
line pointing out the absence of negligence on the
part of his employee who tried to have the line repaired
and the presence of negligence of the parents of the
child in allowing him to leave his house during that
time. The Supreme Court found that a series of
negligence on the part of the defendant's employee
resulted in the death of the victim by electrocution, to
wit: the defendant did not cut down the banana plants
which are taller than the electric posts to eliminate
that source of danger to the electric line; that after the
storm they did not cut off the flow of electricity from
the lines pending inspection of the wires to see if they
had been cut; and lastly, in not taking precautions to
prevent anybody from approaching the live wires.
Decision affirmed.
SYLLABUS
1.

DAMAGES; QUASI-DELICT; NEGLIGENCE.

Art. 2179 of the Civil Code provides that if the

negligence of the plaintiff was only contributory, the
immediate and proximate cause of the injury being the
defendant's lack of care, the plaintiff may recover
damages, but the court shall mitigate the damages to
be awarded. This law may be availed of by the
petitioner but does not exempt him from liability.

supervision over the work of the employee. The liability

of the employer is primary and direct. In fact the
proper defense for the employer to raise so that he may
escape liability is to prove that he exercised the
diligence of the good father of the family to prevent
damage not only in the selection of his employees but
also in adequately supervising them over their work.
DECISION
ESGUERRA, J p:
Petition for certiorari to review the decision of the
Court of First Instance of Pangasinan, Branch IX, in
Civil Case No. U-2412, entitled, "Fidel H. Saynes,
plaintiff-appellee versus Teodoro C. Umali, defendantappellant", which found the death by electrocution of
Manuel Saynes, a boy of 3 years and 8 months, as "due
to the fault or negligence of the defendant (Umali) as
owner and manager of the Alcala Electric Plant;
although the liability of defendant is mitigated by
contributory negligence of the parents of the boy "in
not providing for the proper and adequate supervision
and control over their son." The dispositive part of the
decision reads as follows: cdrep
"Wherefore, the Court hereby renders judgment in
favor of the plaintiff by ordering the defendant to pay to
the

plaintiff

the

sum

of

Five

Thousand

Pesos

(P5,000.00) for the death of his son, Manuel Saynes;

the sum of One Thousand Two Hundred Pesos
(P1,200.00) for actual expenses for and in connection
with the burial of said deceased child, and the further
sum of Three Thousand Pesos (P3,000.00) for moral
damages

and

Five

Hundred

(P500.00)

Pesos

as

reasonable attorney's fee, or a total of Nine Thousand

Seven Hundred (P9,700.00) Pesos, and to pay the costs
of this suit. It Is So Ordered."
Undisputed facts appearing of record are:
"On May 14, 1972, a storm with strong rain hit the

ID.; ID.; ID.; EMPLOYER AND EMPLOYEE;

Municipality of Alcala, Pangasinan, which started from

NEGLIGENCE OF EMPLOYEE IS PRESUMED TO BE

2:00 o'clock in the afternoon and lasted up to about

THE NEGLIGENCE OF EMPLOYER. The negligence

midnight of the same day. During the storm, the

of the employee is presumed to be negligence of the

banana plants standing on an elevated ground along

employer because the employer is supposed to exercise

the barrio road in San Pedro Ili of said municipality

2.

Page 11 of 96
and near the transmission line of the Alcala Electric

an elevated ground which were about 30 feet high and

Plant were blown down and fell on the electric wire. As

which were higher than the electric post supporting

a result, the live electric wire was cut, one end of which

the electric line, and yet the employees of the

was left hanging on the electric post and the other fell

defendant who, with ordinary foresight, could have

to the ground under the fallen banana plants.

easily seen that even in case of moderate winds the

"On the following morning, at about 9:00 o'clock barrio

captain Luciano Bueno of San Pedro Ili who was
passing by saw the broken electric wire and so he
warned the people in the place not to go near the wire
for they might get hurt. He also saw Cipriano
Baldomero, a laborer of the Alcala Electric Plant near
the place and notified him right then and there of the
broken line and asked him to fix it, but the latter told
the barrio captain that he could not do it but that he
was going to look for the lineman to fix it.
"Sometime after the barrio captain and Cipriano
Baldomero had left the place, a small boy of 3 years
and 8 months old by the name of Manuel P. Saynes,
whose house is just on the opposite side of the road,
went to the place where the broken line wire was and
got in contact with it. The boy was electrocuted and he
subsequently died. It was only after the electrocution of
Manuel Saynes that the broken wire was fixed at about
10:00 o'clock on the same morning by the lineman of

electric line would be endangered by banana plants

being blown down, did not even take the necessary
precaution to eliminate that source of danger to the
electric line. Second, even after the employees of the
Alcala Electric Plant were already aware of the possible
damage the storm of May 14, 1972, could have caused
their electric lines, thus becoming a possible threat to
life and property, they did not cut off from the plant
the flow of electricity along the lines, an act they could
have easily done pending inspection of the wires to see
if they had been cut. Third, employee Cipriano
Baldomero was negligent on the morning of the
incident because even if he was already made aware of
the live cut wire, he did not have the foresight to realize
that the same posed a danger to life and property, and
that he should have taken the necessary precaution to
prevent anybody from approaching the live wire;
instead Baldomero left the premises because what was
foremost in his mind was the repair of the line,
obviously forgetting that if left unattended to it could

the electric plant."

endanger life and property.

Petitioner claims that he could not be liable under the

On defendant's argument that the proximate cause of

concept of quasi-delict or tort as owner and manager of

the Alcala Electric Plant because the proximate cause
of the boy's death by electrocution could not be due to
any negligence on his part, but rather to a fortuitous
event the storm that caused the banana plants to
fall and cut the electric line pointing out the absence
of negligence on the part of his employee Cipriano
Baldomero who tried to have the line repaired and the
presence of negligence of the parents of the child in

the victim's death could be attributed to the parents'

negligence in allowing a child of tender age to go out of
the house alone, We could readily see that because of
the aforementioned series of negligence on the part of
defendants' employees resulting in a live wire lying on
the premises without any visible warning of its lethal
character, anybody, even a responsible grown up or not
necessarily an innocent child, could have met the same
fate that befell the victim. It may be true, as the lower

allowing him to leave his house during that time. prLL

Court found out, that the contributory negligence of

A careful examination of the record convinces Us that a

child, which enabled him to leave the house alone on

series

of defendant's

the morning of the incident and go to a nearby place

employees in the Alcala Electric Plant resulted in the

(cut wire was very near the house where victim was

death of the victim by electrocution. First, by the very

living) where the fatal fallen wire electrocuted him,

evidence of the defendant, there were big and tall

might mitigate respondent's liability, but We cannot

banana plants at the place of the incident standing on

agree

of negligence

on

the

part

the victim's parents in not properly taking care of the

with

petitioner's

theory

that

the

parents'

Page 12 of 96
negligence constituted the proximate cause of the

Notwithstanding diligent efforts, We fail to find any

victim's death because the real proximate cause was

reversible error committed by the trial Court in this

the fallen live wire which posed a threat to life and

case, either in its appreciation of the evidence on

property on that morning due to the series of

questions of facts or on the interpretation and

negligence adverted to above committed by defendants'

application

employees and which could have killed any other

liabilities

person who might by accident get into contact with it.

conclusion is that no error amounting to grave abuse

Stated otherwise, even if the child was allowed to leave

of discretion was committed and the decision must be

the house unattended due to the parents' negligence,

left untouched.

he would not have died that morning where it not for

the cut live wire he accidentally touched. cdphil
Art. 2179 of the Civil Code provides that if the
negligence of the plaintiff (parents of the victim in this
case) was only contributory, the immediate and
proximate cause of the injury being the defendants'

of

laws

emanating

governing

quasi-delicts

therefrom.

The

and

inevitable

WHEREFORE, the decision of respondent Court dated

June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.

lack of due care, the plaintiff may recover damages, but

Teehankee (Chairman), Makasiar, Muoz Palma and

the courts shall mitigate the damages to be awarded.

Martin, JJ., concur.

This law may be availed of by the petitioner but does

not exempt him from liability.

4.

Petitioner's liability for injury caused by his employees'

negligence is well defined in par. 4, of Article 2180 of
the Civil Code, which states:
"The owner and manager of the establishment or
enterprise are likewise responsible for damages caused
by their employees in the service of the branches in
which the latter are employed or on the occasion of

EN BANC
[G.R. No. L-21291. March 28, 1969.]
PRECIOLITA V. CORLISS, plaintiff-appellant, vs.
THE MANILA RAILROAD CO., defendant-appellee.

their functions."

Moises C . Nicomedes for plaintiff-appellant.

The negligence of the employee is presumed to be the

The Government Corporate Counsel for defendant-

negligence of the employer because the employer is

appellee.

supposed to exercise supervision over the work of the

employees. This liability of the employer is primary and
direct (Standard Vacuum Oil Co. vs. Tan and Court of
Appeals, 107 Phil. 109). In fact the proper defense for
the employer to raise so that he may escape liability is
to prove that he exercised the diligence of the good
father of the family to prevent damage not only in the
selection of his employees but also in adequately
supervising them over their work. This defense was not
adequately proven as found by the trial Court, and We
do not find any sufficient reason to deviate from its
finding.

SYLLABUS
1.

REMEDIAL LAW; APPEALS; FINDING OF FACT

OF TRIAL COURT BINDING ON APPELLATE COURT;

INSTANT CASE. Plaintiff-appellant filed against
defendant-appellee

Manila

Railroad

Company

complaint for recovery of damages for the death of the

former's husband resulting from a collision between
the jeep he was driving and defendant appellee's
locomotive. After trial, the lower court dismissed the
complaint and concluded that the accident was the
victim's own doing; and that there was no negligence
on the part of defendant-appellee. Held: The decision

Page 13 of 96
appealed from should be affirmed, the finding of the

themselves. There can be no hard and fast rule. There

trial court having been arrived at after a careful

must be that observance of that degree of care,

judicial appraisal and scrutiny of the evidence of

precaution and vigilance which the situation demands.

record.
2.

DECISION
ID.;

ID.;

ID.;

PRESUMPTION

OF

CORRECTNESS OF LOWER COURT'S DECISION.

The lower court's judgment has in its favor the
presumption of correctness. It is entitled to great
respect. After all, the lower court had the opportunity
of weighing carefully what was testified to and
apparently did not neglect it. There is no affront to
justice then if its finding be accorded acceptance,
subject of course to the contingency of ultimate
reversal if error or errors, substantial in character, be
shown in the conclusion thus arrived at. It is a fair
statement of the governing principle to say that the
appellate function is exhausted when there is found to
be rational basis for the result reached by the trial
court.
3.

CIVIL LAW; DAMAGES; LIABILITY FOR ACTS

clear that whoever by act or omission causes damage

to another, there being negligence, is under obligation
to pay for the damage done. Unless it could be
satisfactorily shown, therefore, that defendant-appellee
was guilty of negligence then it could not be held liable.
ID.;

ID.;

ID.;

FACTORS

TO

CONSIDER

WHETHER THERE IS NEGLIGENCE. The factors

that enter the judgment are too many and diverse for
this court to imprison them in a formula sufficient of
itself to yield the correct answer to the multi-faceted
problems the question of negligence possess. Every
case

must

be

dependent

on

its

facts.

The

circumstances indicative of lack of due care must be

judged in the light of what could reasonably be
expected of the parties. If the objective standard of
prudence be met, then negligence is ruled out.
5.

by that euphoric sense of well-being, and with reason.

The future, bright with promise, looms ahead. One's
powers are still to be tested, but one feels ready for
whatever challenge may come his way. There is that
heady atmosphere of self-confidence, at times carried
to excess. The temptation to take risks is there, ever so
often, difficult, if not impossible, to resist. There could
be then a lessening of prudence and foresight, qualities
usually associated with age. For death seems so remote
and contingent an event. Such is not always the case
though, and a slip may be attended with consequences

ID.; ID.; ID.; EACH NEGLIGENCE CASE MUST

CIRCUMSTANCES.

Each

and

every

case

on

questions of negligence is to be decided in accordance

the

peculiar

circumstances

that

Some such thought apparently was in the mind of the

lower court when it dismissed the complaint for
recovery

of

damages

filed

by

plaintiff-appellant,

Preciolita V. Corliss, whose husband, the late Ralph W.

Corliss, was, at the tender age of twenty-one, the victim
of a grim tragedy, when the jeep he was driving collided
with

locomotive

of

defendant-appellee

Manila

Railroad Company, close to midnight on the evening of

February 21, 1957, at the railroad crossing in
Balibago, Angeles, Pampanga, in front of the Clark Air
Force Base. In the decision appealed from, the lower
court, after summarizing the evidence, concluded that
the deceased "in his eagerness to beat, so to speak, the
oncoming locomotive, took the risk and attempted to
reach the other side, but unfortunately he became the
victim of his own miscalculation." 1
The negligence imputed to defendant-appellee was thus
ruled out by the lower court, satisfactory proof to that

BE DECIDED IN ACCORDANCE WITH THE PECULIAR

with

Youth, the threshold of life, is invariably accompanied

at times unfortunate, even fatal.

CAUSING DAMAGE TO ANOTHER. The Civil Code is

4.

FERNANDO, J p:

present

effect, in its opinion, being lacking. Hence this appeal

direct to us, the amount sought in the concept of
damages

reaching

the

sum

of

P282,065.40.

An

examination of the evidence of record fails to yield a

Page 14 of 96
basis for a reversal of the decision appealed from. We

condition, approached the crossing, that is, about 300

affirm.

meters away, he blew the siren and repeated it in

According to the decision appealed from, there is no

dispute as to the following: "In December 1956,
plaintiff, 19 years of age, married Ralph W. Corliss, Jr.,
21 years of age, . . . ; that Corliss, Jr. was an air police
of the Clark Air Force Base; that at the time of the

compliance with the regulations until he saw the jeep

suddenly spurt, and that although the locomotive was
running between 20 and 25 kilometers an hour and
although he had applied the brakes, the jeep was
caught in the middle of the tracks." 5

accident, he was driving the fatal jeep; that he was

1.

then returning in said jeep, together with a P.C. soldier,

negligence attributable to defendant-appellee Manila

to the Base; and that Corliss, Jr. died of serious burns

Railroad Company comes to us encased in the armor of

at the Base Hospital the next day, while the soldier

what admittedly appears to be a careful judicial

sustained serious physical injuries and burns." 2

appraisal and scrutiny of the evidence of record. It is

Then came a summary of the testimony of two of the

witnesses for plaintiff-appellant. Thus: "Ronald J.
Ennis, a witness of the plaintiff, substantially declared
in his deposition, . . ., that at the time of the accident,

The above finding as to the non-existence of

thus proof against any attack unless sustained and

overwhelming. Not that it is invulnerable, but it is
likely to stand firm in the face of even the most
formidable barrage.

he was awaiting transportation at the entrance of Clark

In the more traditional terminology, the lower court

Field, which was about 40 to 50 yards away from the

judgment

tracks and that while there he saw the jeep coming

correctness. It is entitled to great respect. After all, the

towards the Base. He said that said jeep slowed down

lower court had the opportunity of weighing carefully

before reaching the crossing, that it made a brief stop

what was testified to and apparently did not neglect it.

but that it did not stop dead stop. Elaborating, he

There is no affront to justice then if its finding be

declared that while it was slowing down, Corliss, Jr.

accorded

shifted into first gear and that was what he meant by a

contingency of ultimate reversal if error or errors,

brief stop. He also testified that he could see the train

substantial in character, be shown in the conclusion

coming from the direction of San Fernando and that he

thus arrived at. It is fair statement of the governing

heard a warning but that it was not sufficient enough

principle

to avoid the accident." 3 Also: "Virgilio de la Paz,

exhausted when there is found to be a rational basis

another witness of the plaintiff, testified that on the

for the result reached by the trial court.

night of February 21, 1957, he was at the Balibago

checkpoint and saw the train coming from Angeles and
a jeep going towards the direction of Clark Field. He
stated that he heard the whistle of the locomotive and
saw the collision. The jeep, which caught fire, was
pushed forward. He helped the P.C. soldier. He stated
that he saw the jeep running fast and heard the tooting
of the horn. It did not stop at the railroad crossing,
according to him." 4

has

in

its

acceptance,

to

say

that

favor

the

subject

the

of

presumption

course

appellate

to

function

of

the

is

As was held in a 1961 decision: "We have already ruled

that when the credibility of witnesses is the one at
issue, the trial court's judgment as to their degree of
credence

deserves

serious

consideration

by

this

Court." 6 An earlier expression of the same view is

found in Jai-Alai Corporation v. Ching Kiat: "After
going over the record, we find no reason for rejecting
the findings of the court below. The questions raised
hinge on credibility, and it is well-settled that in the

After which reference was made to the testimony of the

absence of compelling reasons, its determination is

main witness for defendant-appellee, Teodorico Capili,

best left to the trial judge who had the advantage of

"who was at the engine at the time of the mishap," and

hearing the parties testify and of observing their

who "testified that before the locomotive, which had

demeanor on the witness stand." 7

been previously inspected and found to be in good

Page 15 of 96
In a 1964 opinion, we adhered to such an approach.

Negligence was defined by us in two 1912 decisions,

Thus: "'Nothing in the record suggests any arbitrary or

United States v. Juanillo 12 and United States v.

abusive conduct on the part of the trial judge in the

Barias 13 Cooley's formulation was quoted with

formulation of the ruling. His conclusion on the matter

approval in both the Juanillo and Barias decisions.

is sufficiently borne out by the evidence presented. We

Thus: "Judge Cooley, in his work on Torts (3d ed.), Sec.

are denied, therefore, the prerogative to disturb that

1324, defines negligence to be: 'The failure to observe

finding, consonant to the time-honored tradition of this

for the protection of the interests of another person

Tribunal to hold trial judges better situated to make

that degree of care, precaution, and vigilance which the

conclusions on questions of fact.'" 8 On this ground

circumstances justly demand, whereby such other

alone we can rest the affirmance of the judgment

person suffers injury.'" There was likewise a reliance on

appealed from.

Ahern v. Oregon Telephone Co. 14 Thus: "Negligence is

2.

Nor is the result different even if no such

presumption

were

indulged

in

and

the

matter

examined as if we were exercising original and not

appellate jurisdiction. The sad and deplorable situation
in which plaintiff-appellant now finds herself, to the
contrary notwithstanding, we find no reason for
reversing the judgment of the lower court.

making clear that whoever by act or omission causes

damage to another, there being negligence, is under
obligation to pay for the damage done. 9 Unless it
be

satisfactorily

shown,

therefore,

that

defendant- appellee was guilty of negligence then it

could

not

be

held

liable.

The

crucial

relative or comparative, not an absolute, term and its

application depends upon the situation of the parties
and the degree of care and vigilance which the
circumstances reasonably require. Where the danger is
great, a high degree of care is necessary, and the
failure to observe it is a want of ordinary care under
the circumstances."

This action is predicated on negligence, the Civil Code

could

want of the care required by the circumstances. It is a

question,

therefore, is the existence of negligence.

To repeat, by such a test, no negligence could be

imputed to defendant-appellee, and the action of
plaintiff-appellant must necessary fail. The facts, being
what they are, compel the conclusion that the liability
sought to be fastened on defendant-appellee had not
arisen.
3.

The above Civil Code provision, which is reiteration of

that found in the Civil Code of Spain, formerly
applicable in this jurisdiction, 10 had been interpreted
in earlier decisions. Thus, in Smith v. Cadwallader
Gibson Lumber Co., 11 Manresa was cited to the
following effect: "'Among the questions most frequently
raised and upon which the majority of cases have been
decided with respect to the application of this liability,

Plaintiff-appellant, in her brief, however, would

seek a reversal of the judgment appealed from on the

ground that there was a failure to appreciate the true
situation. Thus the first three assigned errors are
factual in character. The third assigned error could be
summarily disposed of. It would go against the
evidence to maintain the view that the whistle was not
sounded and the brakes not applied at a distance of
300 meters before reaching the crossing.

are those referring to the determination of the damage

The first two assigned errors would make much of the

or prejudice, and to the fault or negligence of the

failure of the lower court to hold that the crossing bars

person

two

not having been put down and there being no guard at

under

the gate-house, there still was a duty on the part of

discussion, for without damage or prejudice there can

Corliss to stop his jeep to avoid a collision and that

be no liability, and although this element is present no

Teodorico Capili, who drove the engine, was not

indemnity can be awarded unless arising from some

qualified to do so at the time of the accident. For one

person's fault or negligence.'"

cannot just single out a circumstance and then

responsible

indispensable

therefor.

factors

in

These

the

are

the

obligations

confidently

assign

to

it

decisive

weight

and

Page 16 of 96
significance. Considered separately, neither of the two

what to her is the apparent reliance of the lower court

above errors assigned would call for a judgment

on Mestres v. Manila Electric Railroad & Light Co. 16

different in character. Nor would a combination of acts

and United States v. Manabat & Pasibi. 17 In the

allegedly impressed with negligence suffice to alter the

Manabat case, the doctrine announced by this Court

result. The quantum of proof required still had not

follows: "A person in control of an automobile who

been met. The alleged errors fail of their desired effect.

crosses a railroad, even at a regular road crossing, and

The case for plaintiff-appellant, such as it was, had not

who does not exercise that precaution and that control

been improved. There is no justification for reversing

over it as to be able to stop the same almost

the judgment of the lower court.

immediately upon the appearance of a train, is guilty of

It cannot be stressed too much that the decisive

considerations are too variable, too dependent in the
last analysis upon a common sense estimate of the
situation as it presented itself to the parties for us to
be able to say that this or that element having been
isolated, negligence is shown. The factors that enter
the judgment are too many and diverse for us to
imprison them in the formula sufficient of itself to yield
the correct answer to the multi-faceted problems the
question of negligence poses. Every case must be
dependent on its facts. The circumstances indicative of
lack of due care must be judged in the light of what
could reasonably be expected of the parties. If the
objective standard of prudence be met, then negligence
is ruled out.
In this particular case, it would be to show less than
fidelity to the controlling facts to impute negligence to
defendant-appellee. The first three errors assigned
certainly do not call for that conclusion.
4.

The fourth assigned error is deserving of a more

extended treatment. Plaintiff-appellant apparently had

in mind this portion of the opinion of the lower court:
"The weight of authorities is to the effect that a
railroad track is in itself a warning or a signal of
danger to those who go upon it, and that those who,
for reasons of their own, ignore such warning, do so at
their own risk and responsibility. Corliss, Jr., who
undoubtedly had crossed the checkpoint frequently, if
not daily, must have known that locomotive engines
and trains usually pass at that particular crossing
where the accident had taken place." 15
Her assignment of error, however, would single out not
the above excerpt from the decision appealed from but

criminal negligence, providing a collision occurs and

injury results. Considering the purposes and the
general methods adopted for the management of
railroads and railroad trains, we think it is incumbent
upon one approaching a railroad crossing to use all of
his

faculties

of

seeing

and

hearing.

He

should

approach a railroad crossing cautiously and carefully.

He should look and listen and do everything that a
reasonably prudent man would do before he attempts
to cross the track." The Mestres doctrine in a suit
arising from a collision between an automobile and a
street car is substantially similar. Thus: "It may be
said, however, that, where a person is nearing a street
crossing toward which a car is approaching, the duty is
on the party to stop and avoid a collision who can most
readily adjust himself to the exigencies of the case, and
where such person can do so more readily, the
motorman has a right to presume that such duty will
be performed."
It is true, as plaintiff-appellant would now allege, that
there has been a drift away from the apparent rigid
and inflexible doctrine thus set forth in the two above
cases as evidenced by Lilius v. Manila Railroad Co., 18
the controlling facts of which, however, are easily
distinguishable

from

what

had

been

correctly

ascertained in the present case. Such a deviation from

the earlier principle announced is not only true of this
jurisdiction but also of the United States.
This is made clear by Prosser. Speaking of a 1927
decision by Justice Holmes, he had the following to
say: "Especially noteworthy in this respect is the
attempt of Mr. Justice Holmes, in Baltimore & Ohio
Railway v. Goodman, to 'lay down a standard once for
all,'

which

would

require

an

automobile

driver

Page 17 of 96
approaching a railroad crossing with an obstructed

upon him to avoid a possible accident and this

view to stop, look and listen, and if he cannot be sure

consisted simply in stopping his vehicle before the

otherwise that no train is coming, to get out of the car.

crossing and allowing the train to move on. A prudent

The basic idea behind this is sound enough; it is by no

man under similar circumstances would have acted in

means proper care to cross a railroad track without

this manner. This, unfortunately, Corliss, Jr. failed to

taking reasonable precautions against a train, and

do." 22

normally

such

precautions

will

require

looking,

hearing, and a stop, or at least slow speed, where the

view is obstructed." 19

November 29, 1962 dismissing the complaint, is

affirmed. Without pronouncement as to costs.

Then, barely seven years later, in 1934, came Pokora v.

Wabash Railway,

WHEREFORE, the decision of the lower court of

20 where, according to Prosser, it

being shown that "the only effective stop must be made

upon the railway tracks themselves, in a position of

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

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

obvious danger, the court disregarded any such

uniform rule, rejecting the 'get out of the car'
requirement as 'an uncommon precaution, likely to be
futile and sometimes even dangerous,' and saying that
the driver need not always stop. 'Illustrations such as
these,' said Mr. Justice Cardozo, 'bear witness to the
need for caution in framing standards of behavior that
amount to rules of law . . . Extraordinary situations
may not wisely or fairly be subjected to tests or
regulations that are fitting for the commonplace or
normal." 21
What

Justice

Cardozo

announced

would

merely

emphasize what was set forth earlier that each and

every case on questions of negligence is to be decided
in accordance with the peculiar circumstances that
present themselves. There can be no hard and fast
rule. There must be that observance of the degree of
care, precaution, and vigilance which the situation
demands.

Thus

defendant-appellee

acted.

It

is

undeniable then that no negligence can rightfully be

imputed to it.

FIRST DIVISION
[G.R. No. 32611. November 3, 1930.]
CULION ICE, FISH & ELECTRIC CO., INC., plaintiffappellee, vs. PHILIPPINE MOTORS CORPORATION,
defendant-appellant.
Gibbs & McDonough for appellant.
Benj. S. Ohnick for appellee.
SYLLABUS
1.

NEGLIGENCE; SKILL REQUIRED OF PERSON

WHO UNDERTAKES PARTICULAR WORK. A person

who holds himself out as being competent to do work
requiring special skill is guilty of negligence if he fails
to exhibit the care a prudent person would exhibit who
is reasonably well skilled in the particular work

What commends itself for acceptance is this conclusion

arrived at by the lower court: "Predicated on the
testimonies

5.

of

the

plaintiff's

witnesses,

on

the

knowledge of the deceased and his familiarity with the

setup of the checkpoint, the existence of the tracks;
and on the further fact that the locomotive had blown
its siren or whistle, which was heard by said witnesses,
it is clear that Corliss, Jr. was so sufficiently warned in
advance of the oncoming train that it was incumbent

undertaken.
2.

ID.; ID.; CASE AT BAR. The manager of the

defendant corporation, which was engaged chiefly in

selling and repairing of automobiles, but which had
authority under its charter, to deal in all sorts of
machinery engines, and motors, and their equipment,
undertook to change the gasoline engine on plaintiff's
boat, with a view to enabling it to use a fuel of lower

Page 18 of 96
grade. After a new carburetor had been introduced and

The Philippine Motors Corporation was at this time

a new fuel tank installed, the boat was taken out for a

engaged in business as an automobile agency, but,

trial, in the course of which a back fire took place in

under its charter, it had authority to deal in all sorts of

the

were

machinery engines and motors, as well as to build,

communicated, through the carburetor, to the outside,

operate, buy and sell the same and the equipment

with the result that the boat was destroyed. Held, upon

thereof. Quest, as general manager, had full charge of

the facts stated in the opinion, that the loss of the boat

the corporation in all its branches.

cylinder

of

the

engine,

and

flames

was attributable to the negligence or lack of skill on

the part of the manager of the defendant corporation.
DECISION

effecting the change in the engine was begun and

conducted under the supervision of Quest, chiefly by a

This action was instituted in the Court of First

Instance of Manila by Culion Ice, Fish & Electric Co.,
Inc., for the purpose of recovering from the Philippine
Motors Corporation the sum of P11,350, with interest
and costs. Upon hearing the cause the trial court gave
judgment in favor of the plaintiff to recover of the
defendant the sum of P9,850, with interest at 6 per
centum per annum from March 24, 1927, the date of
the filing of the complaint, until satisfaction of the
with

company with Cranston, visited the Gwendoline while

it lay at anchor in the Pasig river, and the work of

STREET, J p:

judgment,

As a result of the aforesaid interview, Quest, in

costs.

From

this

judgment

the

defendant appealed.
The plaintiff and defendant are domestic corporations;
and at the time of the incident with which we are here
concerned; H.D. Cranston was the representative of
the plaintiff in the City of Manila. At the same time the
plaintiff was the registered owner of the motor
schooner Gwendoline, which was used in the fishing
trade in the Philippine Islands. In January, 1925,
Cranston decided, if practicable, to have the engine on
Gwendoline changed from a gasoline consumer to a
crude oil burner, expecting thereby to effect economy
in the cost of running the boat. He therefore made
known his desire to McLeod & Co., a firm dealing in
tractors, and was told by McKellar, of said company,
that he might make inquiries of the Philippine Motors
Corporation, which had its office on Ongpin Street, in
the City of Manila. Cranston accordingly repaired to
the office of the Philippine Motors Corporation and had
a conference with C.E. Quest, its manager, who agreed
to do the job, with the understanding that payment
should be made upon completion of the work.

mechanic whom Quest took with him to the boat. In

this work Quest had the assistance of the members of
the crew of the Gwendoline, who had been directed by
Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came
to the conclusion that the principal thing necessary to
accomplish the end in view was to install a new
carburetor, and a Zenith carburetor was chosen as the
one most adapted to the purpose. After this appliance
had been installed, the engine was tried with gasoline
as a fuel , supplied from the tank already in use. The
result of this experiment was satisfactory. The next
problem was to introduce into the carburetor the baser
fuel, consisting of a low grade of oil mixed with
distillate. For this purpose a temporary tank to contain
the mixture was placed on deck above and at a short
distance from the compartment covering the engine.
This tank was connected with the carburetor by a piece
of tubing, which was apparently not well fitted at the
point where it was connected with the tank. Owing to
this fact the fuel mixture leaked from the tank and
dripped down into the engine compartment. The new
fuel line and that already in use between the gasoline
tank and the carburetor were so fixed that it was
possible to change from the gasoline fuel to the mixed
fuel. The purpose of this arrangement was to enable
the operator to start the engine on gasoline and then,
after the engine had been operating for a few moments,
to switch to the new fuel supply.
In the course of the preliminary work upon the
carburetor and its connections, it was observed that

Page 19 of 96
the carburetor was flooding, and that the gasoline, or

greater that the delicate parts of the carburetor could

other fuel, was trickling freely from the lower part of

sustain. This was no doubt the cause of the flooding of

the carburetor to the floor. This fact was called to

the carburetor; and the result was that, when the back

Quest's attention, but he appeared to think lightly of

fire occurred, the external parts of the carburetor,

the matter and said that, when the engine had gotten

already saturated with gasoline, burst into flames,

to running well, the flooding would disappear.

whence the fire was quickly communicated to the

After preliminary experiments and adjustments had

been made, the boat was taken out into the bay for a
trial run at about 5 p.m., or a little later, on the
evening of January 30, 1925. The first part of the
course

was

covered

without

any

untoward

development, other than the fact that the engine

stopped a few times, owing no doubt to the use of an
improper mixture of fuel. In the course of the trial
Quest remained outside of the engine compartment

highly inflammable material near-by. Ordinarily a back

fire from an engine would not be followed by any
disaster, but in this case the leak along the pipe line
and the flooding of the carburetor had created a
dangerous situation, which a prudent mechanic,
versed in repairs of this nature, would have taken
precautions to avoid. The back fire may have been due
either to the fact that the spark was too advanced or
the fuel improperly mixed.

and occupied himself with making experiments in the

In this connection it must be remembered that when a

matter of mixing the crude oil with distillate, with a

person holds himself out as being competent to do

view of ascertaining what proportion of the two

things requiring professional skill, he will be held liable

elements would give best results in the engine.

for negligence if he fails to exhibit the care and skill of

As the boat was coming in from this run, at about 7:30

p.m., and when passing near Cavite, the engine
stopped, and connection again had to be made with the
gasoline line to get a new start. After this had been
done the mechanic, or engineer, switched to the tube
connecting with the new mixture. A moment later a
back fire occurred in the cylinder chamber. This
caused a flame to shoot back into the carburetor, and
instantly the carburetor and adjacent parts were
covered with a mass of flames, which the members of
the crew were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and
their escape was safely effected, but the Gwendoline
was reduced to a mere hulk. The salvage from the
wreck, when sold, brought only the sum of P150. The
value of the boat, before the accident occurred, as the
court found, was P10,000.00.

that the loss of this boat was chargeable to the

negligence and lack of skill of Quest. The temporary
in

apparently

which
at

the
too

mixture
great

attempts to do. The proof shows that Quest had had

ample experience in fixing the engines of automobiles
and tractors, but it does not appear that he was
experienced in the doing of similar work on boats. For
this reason, possibly, the dripping of the mixture from
the tank on deck and the flooding of the carburetor did
not convey to his mind an adequate impression of the
danger of fire. But a person skilled in that particular
sort of work would, we think, have been sufficiently
warned from those circumstances to cause him to take
greater and adequate precautions against the danger.
In other words Quest did not use the skill that would
have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, in
our opinion, on the part of Quest, a blameworthy
antecedent inadvertence to possible harm, and this
constitutes negligence. The burning of the Gwendoline

A study of the testimony leads us to the conclusion

tank

one ordinarily skilled in the particular work which he

an

was

prepared

elevation

from

was
the

carburetor, with the result that when the fuel line

opened, the hydrostatic pressure in the carburetor was

may be said to have resulted from accident, but this

accident was in no sense an unavoidable accident. It
would not have occurred but for Quest's carelessness
or lack of skill. The test of liability is not whether the
jury was accidental in a sense, but whether Quest was
free from blame.

Page 20 of 96
We therefore see no escape from the conclusion that

action should be considered stale. It is sufficient reply

this accident is chargeable to lack of skill or negligence

to say that the action was brought within the period

in effecting the changes which Quest undertook to

limited by the statute of limitations and the situation is

accomplish; and even supposing that our theory as to

not one where the defense of laches can be properly

the exact manner in which the accident occurred

invoked.

might appear to be in some respects incorrect, yet the

origin of the fire is not so inscrutable as to enable us to
say that it was casus fortuitus.

inasmuch

Gwendoline

as

during

Quest
the

had

control

experimental

of

the

run,

the

defendant corporation was in the position of a bailee

and that, as a consequence the burden of proof was on
the defendant to exculpate itself from responsibility by
proving that the accident was not due to the fault of
Quest. We are unable to accede to this point of view.
Certainly, Quest was not in charge of the navigation of
the

boat

on

this

trial

run.

His

employment

contemplated the installation of new parts in the

engine only, and it seems rather strained to hold that
the defendant corporation had thereby become bailee
of its owner's yard, or a mechanic who repairs a coach
without taking it to his shop, are not bailees, and their
rights and liabilities are determined by the general
rules of law, under their contract. The true bailee
acquires possession and what is usually spoken of as
special

property

in

the

damages to the plaintiff in the amount of P9,850, with

interest, must be affirmed; and it is so ordered, with

The trial judge seems to have proceeded on the idea

that,

It results that the judgment appealed from, awarding

chatted

bailed.

As

consequence of such possession and special property,

the bailee is given a lien for his compensation. These
ideas seem to be incompatible with the situation now
under consideration. But though defendant cannot be
held liable on the supposition that the burden of proof

costs against the appellant.

Avancea,

C.

J.,

Malcolm,

Villamor,

Ostrand,

Romualdez and Villareal, JJ., concur.

6.
EN BANC
[G.R. No. 12191. October 14, 1918.]
JOSE

CANGCO,

plaintiff-appellant,

vs.

MANILA

RAILROAD CO., defendant-appellee.

Ramon Sotelo, for appellant.
Kincaid & Hartigan, for appellee.
SYLLABUS
1.

MASTER

AND

SERVANT;

CONTRACT;

NEGLIGENCE. Failure to perform a contract cannot

be excused upon the ground that the breach was due
to the negligence of a servant of the obligor, and that
the latter exercised due diligence in the selection and
control of the servant.

has not been sustained by it in disproving the

2.

negligence of its manager, we are nevertheless of the

AQUILIANA; CULPA CONTRACTUAL. The distinction

opinion that the proof shows by a clear preponderance

between negligence as the source of an obligation

that the accident to the Gwendoline and the damages

(culpa aquiliana) and negligence in the performance of

resulting therefrom are chargeable to the negligence or

a contract (culpa contractual ) pointed out.

lack of skill of Quest.

3.

CONTRACTS;

CARRIERS;

NEGLIGENCE:;

PASSENGERS;

CULPA

NEGLIGENCE;

This action was instituted about two years after the

ALIGHTING FROM MOVING TRAIN. It is not

accident in question had occurred, and after Quest had

negligence per se for a traveler to alight from a slowly

ceased to be the manager of the defendant corporation

moving train.

and had gone back to the United States. Upon these

facts, the defendant bases the contention that the

DECISION

Page 21 of 96
FISHER, J p:
At the time of the occurrence which gave rise to this

were difficult to discern, especially to a person

emerging from a lighted car.

litigation the plaintiff, Jose Cangco, was in the

The explanation of the presence of a sack of melons on

employment of the Manila Railroad Company in the

the platform where the plaintiff alighted is found in the

capacity of clerk, with a monthly wage of P25. He lived

fact that it was the customary season for harvesting

in the pueblo of San Mateo, in the province of Rizal,

these melons and a large lot had been brought to the

which is located upon the line of the defendant railroad

station

company; and in coming daily by train to the

contained in numerous tow sacks which had been

company's office in the city of Manila where he worked,

piled on the platform in a row one upon another. The

he used a pass, supplied by the company, which

testimony shows that this row of sacks was so placed

entitled him to ride upon the company's trains free of

that there was a space of only about two feet between

charge. Upon the occasion in question, January 20,

the sacks of melons and the edge of the platform; and

1915, the plaintiff was returning home by rail from his

it is clear that the fall of the plaintiff was due to the

daily labors; and as the train drew up to the station in

fact that his foot alighted upon one of these melons at

San Mateo the plaintiff arose from his seat in the

the moment he stepped upon the platform. His

second class-car where he was riding and, making his

statement that he failed to see these objects in the

exit through the door, took his position upon the steps

darkness is readily to be credited.

of the coach, seizing the upright guardrail with his

right hand for support.

for

shipment

to

the

market.

They

were

The plaintiff was drawn from under the car in an

unconscious condition, and it appeared that the

On the side of the train where passengers alight at the

injuries which he had received were very serious. He

San Mateo station there is a cement platform which

was therefore brought at once to a certain hospital in

begins to rise with a moderate gradient some distance

the city of Manila where an examination was made and

away from the company's office and extends along in

his arm was amputated. The result of this operation

front of said office for a distance sufficient to cover the

was unsatisfactory, and the plaintiff was then carried

length of several coaches. As the train slowed down

to another hospital where a second operation was

another passenger, named Emilio Zuniga, also an

performed and the member was again amputated

employee of the railroad company, got off the same car,

higher up near the shoulder. It appears in evidence

alighting safely at the point where the platform begins

that the plaintiff expended the sum of P790.25 in the

to rise from the level of the ground. When the train had

form of medical and surgical fees and for other

proceeded a little farther the plaintiff Jose Cangco

expenses in connection with the process of his

stepped off also, but one or both of his feet came in

curation.

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.

Upon August 31, 1915, he instituted this proceeding in

the Court of First Instance of the city of Manila to
recover damages of the defendant company, founding
his action upon the negligence of the servants and
employees of the defendant in placing the sacks of
melons upon the platform and in leaving them so
placed as to be a menace to the security of passenger
alighting from the company's trains. At the hearing in

The accident occurred between 7 and 8 o'clock on a

the Court of First Instance, his Honor, the trial judge,

dark night, and as the railroad station was lighted

found the facts substantially as above stated, and drew

dimly by a single light located some distance away,

therefrom his conclusion to the effect that, although

objects on the platform where the accident occurred

negligence was attributable to the defendant by reason

Page 22 of 96
of the fact that the sacks of melons were so placed as

upon article 1093 (vol. 8, p. 30) Manresa clearly points

to obstruct passengers passing to and from the cars,

out the difference between "culpa, substantive and

nevertheless, the plaintiff himself had failed to use due

independent, which of itself constitutes the source of

caution in alighting from the coach and was therefore

an obligation between persons not formerly connected

precluded from recovering. Judgment was accordingly

by any legal tie" and culpa considered as an "accident

entered in favor of the defendant company, and the

in

plaintiff appealed.

existing . . .."

It can not be doubted that the employees of the

In the Rakes case (supra) the decision of this court was

railroad company were guilty of negligence in piling

made to rest squarely upon the proposition that article

these sacks on the platform in the manner above

1903 of the Civil Code is not applicable to acts of

stated; that their presence caused the plaintiff to fall

negligence which constitute the breach of a contract.

as he alighted from the train; and that they therefore

constituted an effective legal cause of the injuries
sustained by the plaintiff. It necessarily follow s that
the defendant company is liable for the damage thereby
occasioned unless recovery is barred by the plaintiff's
own contributory negligence. In resolving this problem
it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the
defendant company and the contributory negligence of
the plaintiff should be separately examined.

liability of the defendant is the contract of carriage,

and that the obligation to respond for the damage
which plaintiff has suffered arises, if at all, from the
breach of that contract by reason of the failure of
defendant to exercise due care in its performance. That
is to say, its liability is direct and immediate, differing
in

the

legal

viewpoint

performance

of

an

obligation

already

Upon this point the Court said:

"The acts to which these articles [1902 and 1903 of the
Civil Code] are applicable are understood to be those
not growing out of pre-existing duties of the parties to
one another But where relations already formed give
rise to duties, whether springing from contract or
quasi-contract, then breaches of those duties are
subject to articles 1101, 1103 and 1104 of the same
code." (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil.

It is important to note that the foundation of the legal

essentially,

the

from

that

presumptive responsibility for the negligence of its

servants, imposed by article 1903 of the Civil Code,
which can be rebutted by proof of the exercise of due
care in their selection and supervision. Article 1903 of
the Civil Code is not applicable to obligations arising ex
contractu, but only to extra-contractual obligations
or to use the technical form of expression, that article
relates only to culpa aquiliana and not to culpa
contractual.
Manresa (vol. 8, p. 67) in his commentaries upon
articles 1103 and 1104 of the Civil Code, clearly points
out this distinction, which was also recognized by this
Court in its decision in the case of Rakes vs. Atlantic,
Gulf and Pacific Cc. (7 Phil. Rep., 359). In commenting

Rep., 359 at p. 365.)

This distinction is of the utmost importance. The
liability, which, under the Spanish law, is, in certain
cases

imposed

damages

upon

occasioned

employers
by

the

with

respect

negligence

of

to

their

employees to persons to whom they are not bound by

contract, is not based, as in the English Common Law,
upon the principle of respondeat superior if it were,
the

master

would

be liable

in every

case

and

unconditionally but upon the principle announced

in article 1902 of the Civil Code, which imposes upon
all persons who by their fault or negligence, do injury
to another, the obligation of making good the damage
caused. One who places a powerful automobile in the
hands of a servant whom he knows to be ignorant of
the method of managing such a vehicle, is himself
guilty of an act of negligence which makes him liable
for all the consequences of his imprudence. The
obligation to make good the damage arises at the very
instant that the unskillful servant, while acting within
the scope of his employment, causes the injury. The
liability of the master is personal and direct. But, if the

Page 23 of 96
master has not been guilty of any negligence whatever

"From this article two things are apparent: (1) That

in the selection and direction of the servant, he is not

when an injury is caused by the negligence of a

liable for the acts of the latter, whether done within the

servant

scope of his employment or not, if the damage done by

presumption of law that there was negligence on the

the servant does not amount to a breach of the

part of the master or employer either in the selection of

contract between the master and the person injured.

the servant or employee, or in supervision over him

It is not accurate to say that proof of diligence and care

in the selection and control of the servant relieves the
master from liability for the latter's acts on the
contrary, that proof shows that the responsibility has
never existed. As Manresa says (vol. 8, p. 68) the
liability arising from extra-contractual culpa is always
based upon a voluntary act or omission which, without
willful intent, but by mere negligence or inattention,

or

employee

there

instantly

arises

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 relieved
from liability.

has caused damage to another. A master who exercises

"This theory bases the responsibility of the master

all possible care in the selection of his servant, taking

ultimately on his own negligence and not on that of his

into

should

servant. This is the notable peculiarity of the Spanish

possess for the discharge of the duties which it is his

law of negligence. It is, of course, in striking contrast to

purpose to confide to them, and directs them with

the American doctrine that, in relations with strangers,

equal diligence, thereby performs his duty to third

the negligence of the servant is conclusively the

persons to whom he is bound by no contractual ties,

negligence of the master."

consideration

the

qualifications

they

and he incurs no liability whatever if, by reason of the

negligence of his servants, even within the scope of
their employment, such third persons suffer damage.
True it is that under article 1903 of the Civil Code the
law creates a presumption that he has been negligent
in the selection or direction of his servant, but the
presumption is rebuttable and yields to proof of due
care and diligence in this respect.

The opinion there expressed by this Court, to the effect

that in case of extra-contractual culpa based upon
negligence, it is necessary that there shall have been
some fault attributable to the defendant personally,
and that the last paragraph of article 1903 merely
establishes a rebuttable presumption, is in complete
accord with the authoritative opinion of Manresa, who
says (vol. 12, p. 611) that the liability created by article

The supreme court of Porto Rico, in interpreting

1903 is imposed by reason of the breach of the duties

identical provisions, as found in the Porto Rican Civil

inherent in the special relations of authority or

Code, has held that these articles are applicable to

superiority existing between the person called upon to

cases of extra-contractual culpa exclusively. (Carmona

repair the damage and the one who, by his act or

vs. Cuesta, 20 Porto Rico Reports, 215.)

omission, was the cause of it.

This distinction was again made patent by this Court

On the other hand, the liability of masters and

in its decision in the case of Bahia vs. Litonjua and

employers for the negligent acts or omissions of their

Leynes, (30 Phil. Rep., 624), which was an action

servants or agents, when such acts or omissions cause

brought upon the theory of the extra-contractual

damages which amount to the breach of a contract, is

liability of the defendant to respond for the damage

not based upon a mere presumption of the master's

caused by the carelessness of his employee while

negligence in their selection or control, and proof of

acting within the scope of his employment The Court,

exercise of the utmost diligence and care in this regard

after citing the last paragraph of article 1903 of the

does not relieve the master of his liability for the

Civil Code, said:

breach of his contract.

Page 24 of 96
Every legal obligation must of necessity be extra-

occupy a position of dependency with respect to the

contractual

person made liable for their conduct.

or

contractual.

Extra-contractual

obligation has its source in the breach or omission of

those mutual duties which civilized society imposes
upon its members, or which arise from these relations,
other than contractual, of certain members of society
to others, generally embraced in the concept of status.
The legal rights of each member of society constitute
the measure of the corresponding legal duties, mainly
negative in character, which the existence of those
rights imposes upon all other members of society. The
breach of these general duties whether due to willful
intent or to mere inattention, if productive of injury,
gives rise to an obligation to indemnify the injured
party. The fundamental distinction between obligations
of this character and those which arise from contract,
rests upon the fact that in cases of non-contractual
obligation it is the wrongful or negligent act or
omission itself which creates the vinculum juris,
whereas in contractual relations the vinculum exists
independently of the breach of the voluntary duty
assumed by the parties when entering into the
contractual relation.

from negligence, whether of act or omission, it is

competent for the legislature to elect and our
Legislature has so elected to limit such liability to
cases in which the person upon whom such an
obligation is imposed is morally culpable or, on the
contrary, for reasons of public policy, to extend that
liability, without regard to the lack of moral culpability,
so as to include responsibility for the negligence of
those persons whose acts or omissions are imputable,
by a legal fiction, to others who are in a position to
exercise an absolute or limited control over them. The
legislature which adopted our Civil Code has elected to
limit extra contractual liability with certain wellexceptions

undertaken by contract to render service to another, is

wholly different from that to which article 1903 relates.
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.
Proof of the contract and of its nonperformance is
sufficient prima facie to warrant a recovery.
"As a general rule . . . it is logical that in case of extracontractual culpa, a suing creditor should assume the
burden of proof of its existence, as the only fact upon
which his action is based; while on the contrary, in a

With respect to extra-contractual obligation arising

defined

The position of a natural or juridical person who has

to

cases

in

which

moral

culpability can be directly imputed to the persons to be

charged. This moral responsibility may consist in
having failed to exercise due care in one's own acts, or
in having failed to exercise due care in the selection
and control of one's agents or servants, or in the
control of persons who, by reason of their status,

case of negligence which presupposes the existence of

a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary
for him to prove the negligence." (Manresa, vol. 8, p. 71
[1907 ed., p. 76].)
As it is not necessary for the plaintiff in an action for
the breach of a contract to show that the breach was
due to the negligent conduct of defendant or of his
servants, even though such be in fact the actual cause
of the breach, it is obvious that proof on the part of
defendant that the negligence or omission of his
servants or agents caused the breach of the contract
would not constitute a defense to the action. If the
negligence of servants or agents could be invoked as a
means

of

discharging

the

liability

arising

from

contract, the anomalous result would be that persons

acting through the medium of agents or servants in the
performance of their contracts, would be in a better
position than those acting in person. If one delivers a
valuable watch to a watchmaker who contracts to
repair it, and the bailee, by a personal negligent act

Page 25 of 96
causes its destruction, he is unquestionably liable.

the defendant's servants [has] been held to constitute a

Would it be logical to free him from his liability for the

defense to an action for damages for breach of contract.

breach of his contract, which involves the duty to

exercise due care in the preservation of the watch, if he
shows that it was his servant whose negligence caused
the injury? If such a theory could be accepted,
juridical persons would enjoy practically complete
immunity from damages arising from the breach of
their contracts if caused by negligent acts of omission
or commission on the part of their servants, as such
juridical persons can of necessity only act through
agents or servants, and it would no doubt be true in
most instances that reasonable care had been taken in
the selection and direction of such servants. If one
delivers

securities

to

banking

corporation

as

collateral, and they are lost by reason of the negligence

of some clerk employed by the bank, would it be just
and reasonable to permit the bank to relieve itself of
liability for the breach of its contract to return the
collateral upon the payment of the debt by proving that
due care had been exercised in the selection and
direction of the clerk?

of an obligation, and culpa contractual as a mere

to

the

performance

of

contract

has

frequently been recognized by the supreme court of

Spain. (Sentencias of June 27, 1894; November 20,
1896; and December 13 1896.) In the decision of
November 20, 1896, it appeared that plaintiff s action
arose ex contractu, but that defendant sought to avail
himself of the provisions of article 1902 of the Civil
Code as a defense. The Spanish Supreme Court

"These are not cases of injury caused, without any preexisting obligation, by fault or negligence, such as
those to which article 1902 of the Civil Code relates,
but of damages caused by the defendant's failure to
out

the

undertakings

for the damages caused by the negligence of his driver.

In that case the court commented on the fact that no
evidence had been adduced in the trial court that the
defendant had been negligent in the employment of the
driver, or that he had any knowledge of his lack of skill
or carefulness.
In the case of Baer Senior & Co.'s Successors vs.
Compaia Maritima (6 Phil. Rep., 215), the plaintiff
sued the defendant for damages caused by the loss of a
barge belonging to plaintiff which was allowed to get
adrift by the negligence of defendant's servants in the
course of the performance of a contract of towage. The
court held, citing Manresa (vol. 8, pp. 29, 69) that if
the "obligation of the defendant grew out of a contract
made between it and the plaintiff . . . we do not think
that the provisions of articles 1902 and 1903 are

imposed

In the case of Chapman vs. Underwood (27 Phil. Rep.,

374), plaintiff sued the defendant to recover damages
for personal injuries caused by the negligence of
defendant's

chauffeur

while

driving

defendant's

automobile in which defendant was riding at the time.

The court found that the damages were caused by the
negligence of the driver of the automobile, but held
that the master was not liable, although he was
present at the time, saying:
" . . . unless the negligent acts of the driver are

rejected defendant's contention, saying:

carry

court held that the owner of a carriage was not liable

applicable to the case."

This distinction between culpa aquiliana, as the source

incident

In the case of Johnson vs. David (5 Phil. Rep., 663), the

by

the

contracts . . .."
A brief review of the earlier decision of this court
involving the liability of employers for damage done by
the negligent acts of their servants will show that in no
case has the court ever decided that the negligence of

continued for such a length of time as to give the owner

a reasonable opportunity to observe them and to direct
the driver to desist therefrom. . . . The act complained
of must be continued in the presence of the owner for
such a length of time that the owner by his
acquiescence, makes the driver's acts his own."
In the case of Yamada vs. Manila Railroad Co. and
Rachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is
true that the court rested its conclusion as to the
liability of the defendant upon article 1903, although

Page 26 of 96
the facts disclosed that the injury complained of by

bound by contract, and made reference to the fact that

plaintiff constituted a breach of the duty to him arising

the defendant was negligent in the selection and

out of the contract of transportation. The express

control of its servants, that in such a case the court

ground of the decision in this case was that article

would have held that it would have been a good defense

1903, in dealing with the liability of a master for the

to the action, if presented squarely upon the theory of

negligent acts of his servants "makes the distinction

the breach of the contract, for defendant to have proved

between private individuals and public enterprise;"

that it did in fact exercise care in the selection and

that as to the latter the law creates a rebuttable

control of the servant.

presumption of negligence in the selection or direction

of the servants; and that in the particular case the
presumption of negligence had not been overcome.

The true explanation of such cases is to be found by

directing the attention to the relative spheres of
contractual and extra-contractual obligations. The field

It is evident, therefore, that in its decision in the

of non-contractual obligation is much more broader

Yamada case, the court treated plaintiff's action as

than that of contractual obligation, comprising, as it

though founded in tort rather than as based upon the

does, the whole extent of juridical human relations.

breach of the contract of carriage, and an examination

These two fields, figuratively speaking, concentric; that

of the pleadings and of the briefs shows that the

is to say, the mere fact that a person is bound to

questions of law were in fact discussed upon this

another by contract does not relieve him from extra-

theory. Viewed from the standpoint of the defendant

contractual liability to such person. When such a

the practical result must have been the same in any

contractual relation exists the obligor may break the

event. The proof disclosed beyond doubt that the

contract under such conditions that the same act

defendant's servant was grossly negligent and that his

which constitutes a breach of the contract would have

negligence was the proximate cause of plaintiff's injury.

constituted

It also affirmatively appeared that defendant had been

obligation had no contract existed between the parties.

guilty of negligence in its failure to exercise proper

discretion in the direction of the servant. Defendant
was therefore, liable for the injury suffered by plaintiff,
whether the breach of the duty were to be regarded as
constituting culpa aquilina or culpa contractual. As
Manresa points out (vol. 8, pp. 29 and 69) whether
negligence occurs as an incident in the course of the
performance of a contractual undertaking or is itself
the source of an extra-contractual obligation, its
essential characteristics are identical. There is always
an act or omission productive of damage due to
carelessness

or

inattention

on

the

part

of

the

defendant. Consequently, when the court holds that a

defendant is liable in damages for having failed to
exercise due care, either directly, or in failing to
exercise proper care in the selection and direction of
his servants, the practical result is identical in either
ease. Therefore, it follows that it is not to be inferred,
because the court held in the Yamada ease that the
defendant was liable for the damages negligently
caused by its servant to a person to whom it was

the

source

of

an

extra-contractual

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
(supra), 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

Page 27 of 96
negligence and plaintiff's negligence merely contributed

Or, if we prefer to adopt the mode of exposition used by

to his injury, the damages should be apportioned. It is,

this court in Picart vs. Snith (37 Phil. Rep., 809), we

therefore, important to ascertain if defendant was in

may say that the test is this; Was there anything in the

fact guilty of negligence.

circumstances surrounding the plaintiff at the time he

It may be admitted that had plaintiff waited until the

train had come to a full stop before alighting, the
particular injury suffered by him could not have
occurred.

Defendant

contends,

and

cites

many

authorities in support of the contention, that it is

negligence per se for a passenger to alight from a

alighted from the train which would have admonished

a person of average prudence that to get off the train
under the conditions then existing was dangerous ? If
so, the plaintiff should have desisted from alighting;
and

his

failure

so

to

desist

was

contributory

negligence.

moving train. We are not disposed to subscribe to this

As the case now before us presents itself, the only fact

doctrine n its absolute form. We are of the opinion that

from which a conclusion can be drawn to the effect

this proposition is too broadly stated and is at variance

that the plaintiff was guilty of contributory negligence

with the experience of every-day life. In this particular

is that he stepped off the car without being able to

instance, tat the train was barely moving when plaintiff

discern clearly the condition of the platform and while

alighted is shown conclusively by the fact that it came

the train was yet slowly moving. In considering the

to stop within six meters from the place where he

situation thus presented, it should not be overlooked

stepped from it. Thousands of persons alight from

that the plaintiff was, as we find, ignorant of the fact

trains under these conditions every day of the year,

that the obstruction which was caused by the sacks of

and sustain no injury where the company has kept its

melons piled on the platform existed; and as the

platform free from dangerous obstructions. There is no

defendant was bound by reason of its duty as a public

reason to believe that plaintiff would have suffered any

carrier to afford to its passengers facilities for safe

injury whatever in alighting as he did had it not been

egress from its trains, the plaintiff had a right to

for defendant's negligent failure to perform its duty to

assume, in the absence of some circumstance to warn

provide a safe alighting place.

him to the contrary, that the platform was clear. The

We are of the opinion that the correct doctrine relating

to this subject is that expressed in Thompson's work
on Negligence (vol. 3, sec. 3010) as follows:

has been guilty of negligence in attempting to alight

from a moving railway train, is that of ordinary or
reasonable care. It is to be considered whether an
ordinarily prudent person, of the age, sex and
condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed by
the evidence. This care has been defined to be, not the
care which may or should be used by the prudent man
generally, but the care which a man of ordinary
prudence would use under similar circumstances, to
injury."

(Thompson,

Negligence, vol. 3, sec. 3010.)

Commentaries

lighted, and this also is proof of a failure upon the part

of the defendant in the performance of a duty owing by
it to the plaintiff; for if it were by any possibility

"The test by which to determine whether the passenger

avoid

place, as we have already stated, was dark, or dimly

on

conceded that it had a right to pile these sacks in the

path of alighting passengers, the placing of them in
that position gave rise to the duty to light the premises
adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence
on the part of the plaintiff in this case the following
circumstances are to be noted: The company's platform
was constructed upon a level higher than that of the
roadbed and the surrounding ground. The distance
from the steps of the car to the spot where the
alighting passenger would place his feet on the
platform was thus reduced, thereby decreasing the risk
incident to stepping off. The nature of the platform,
constructed as it was of cement material, also assured

Page 28 of 96
to the passenger a stable and even surface on which to

P3,290.25, and for the costs of both instances. So

alight. Furthermore, the plaintiff was possessed of the

ordered.

vigor and agility of young manhood, and it was by no

means so risky for him to get off while the train was yet
moving as the same act would have been in an aged or
feeble

person.

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.
Women, it has been observed, as a general rule, are
less capable than men of alighting with safety under
such conditions, as the nature of their wearing apparel
obstructs the free movement of the limbs. Again, it may
be noted that the place was perfectly familiar to the
plaintiff, as it was his daily custom to get on and off
the train at this station. There could, therefore, be no
uncertainty in his mind with regard either to the
length of the step which he was required to take or the
character of the platform where he was alighting. Our
conclusion is that the conduct of the plaintiff in
undertaking to alight while the train was yet slightly
under way was not characterized by imprudence and
that therefore he was not guilty of contributory
negligence.

accident, was earning P25 a month as a copyist clerk,

and that the injuries he has suffered have permanently
him

from

continuing

that

employment.

Defendant has not shown that any other gainful

occupation is open to plaintiff. His expectancy of life,
according

concur.
Separate Opinions
MALCOLM, J., dissenting:
With one sentence in the majority decision, we are of
full accord, namely, "It may be admitted that had
plaintiff waited until the train had come to a full stop
before alighting, the particular injury suffered by him
could not have occurred." With the general rule relative
to a passenger's contributory negligence, we are
likewise in full accord, namely, "An attempt to alight
from a moving train is negligence per se." Adding these
two points together, we have the logical result the
Manila Railroad Co. should be absolved from the
complaint, and judgment affirmed.
Johnson, J., concurs.
7.
SECOND DIVISION
[G.R. No. 77679. September 30, 1987.]

The evidence shows that the plaintiff, at the time of the

disabled

Arellano, C.J., Torres, Street and Avancea, JJ.,

to

the

standard

mortality

tables,

is

approximately thirty-three years. We are of the opinion

that a fair compensation for the damage suffered by
him for his permanent disability is the sum of P2,500,
and that he is also entitled to recover of defendant the
additional sum of P790.25 for medical attention,
hospital services, and other incidental expenditures
connected with the treatment of his injuries.
The decision of the lower court is reversed, and
judgment is hereby rendered plaintiff for the sum of

VICENTE VERGARA, petitioner, vs. THE COURT OF

APPEALS and AMADEO AZARCON, respondents.
RESOLUTION
PADILLA, J p:
An action for damages based on quasi-delict (Art. 2176
of the Civil Code) was filed by private respondent
against petitioner. The action arose from a vehicular
accident that occurred on 5 August 1979 in Gapan,
Nueva Ecija, when Martin Belmonte, while driving a
cargo truck belonging to petitioner, rammed "head-on"
the store-residence of the private respondent, causing
damages thereto which were inventoried and assessed
at P53,024.22.
In his answer to the complaint, the petitioner alleged
principally: "that his driver Martin Belmonte operated

Page 29 of 96
said cargo truck in a very diligent (and) careful

It is undisputed that private respondent suffered

manner; that the steering wheel refused to respond to

damages as a result of an act or omission of petitioner.

his effort and as a result of a blown-out tire and

The issue of whether or not this act or omission can be

despite application of his brakes, the said cargo truck

considered as a "negligent" act or omission was passed

hit the store-residence of plaintiff (private respondent)

upon by the trial court. The findings of said court,

and that the said accident was an act of God for which

affirmed by the respondent court, which we are not

he cannot be held liable." 1

prepared to now disturb, show that the fact of

Petitioner also filed a third party complaint against

Travellers Insurance and Surety Corporation, alleging
that said cargo truck involved in the vehicular
accident, belonging to the petitioner, was insured by
the

third

party

defendant

insurance

company.

Petitioner asked that the latter be ordered to pay him

whatever amount he may be ordered by the court to
pay to the private respondent. LLphil

respondent. Upon appeal to the Court of Appeals, the

latter court affirmed in toto the decision of the trial
court, which ordered petitioner to pay, jointly and
with

Travellers

Insurance

established by the police report and the testimony of

Patrolman Masiclat. And the fact of negligence may be
deduced from the surrounding circumstances thereof.
According to the police report, "the cargo truck was
travelling on the right side of the road going to Manila
and then it crossed to the center line and went to the
left side of the highway; it then bumped a tricycle; and
then another bicycle; and then said cargo truck

The trial court rendered judgment in favor of private

severally

occurrence of the "vehicular accident" was sufficiently

and

Surety

Corporation, to the private respondent the following: (a)

P53,024.22 as actual damages; (b) P10,000.00 as
moral damages; (c) P10,000.00 as exemplary damages;

rammed the storewarehouse of the plaintiff." 2

According to the driver of the cargo truck, he applied
the brakes but the latter did not work due to
mechanical defect. Contrary to the claim of the
petitioner, a mishap caused by defective brakes cannot
be considered as fortuitous in character. Certainly, the
defects were curable and the accident preventable.

and (d) the sum of P5,000.00 for attorney's fees and

Furthermore, the petitioner failed to adduce any

the costs. On the third party complaint, the insurance

evidence to overcome the disputable presumption of

company was sentenced to pay to the petitioner the

negligence on his part in the selection and supervision

following: (a) P50,000.00 for third party liability under

of his driver.

its comprehensive accident insurance policy; and (b)

P3,000.00 for and as attorney's fees. prLL
Hence, this petition for review on certiorari.
Petitioner's contention that the respondent court erred
in finding him guilty of fault or negligence is not
tenable. It was established by competent evidence that
the requisites of a quasi-delict are present in the case
at bar. These requisites are: (1) damages to the
plaintiff; (2) negligence, by act or omission, of which
defendant, or some person for whose acts he must
respond, was guilty; and (3) the connection of cause
and effect between such negligence and the damages.
LibLex

Based on the foregoing finding by the respondent

Court that there was negligence on the part of the
petitioner,

the

petitioner's

contention

that

the

respondent court erred in awarding private respondent

actual, moral and exemplary damages as well as
attorney's fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.
Yap, Melencio-Herrera, Paras and Sarmiento, JJ.,
concur..
G.R. No. 77679 September 30, 1987 VICENTE
VERGARA, petitioner, vs. THE COURT OF APPEALS
and AMADEO AZARCON, respondents. PADILLA, J.:

Page 30 of 96
An action for damages based on quasi-delict (Art. 2176

omission, of which defendant, or some person for

of the Civil Code) was filed by private respondent

whose acts he must respond, was guilty; and (3) the

against petitioner. The action arose from a vehicular

connection

accident that occurred on 5 August 1979 in Gapan,

negligence and the damages. It is undisputed that

Nueva Ecija, when Martin Belmonte, while driving a

private respondent suffered damages as a result of an

cargo truck belonging to petitioner, rammed "head-on"

act or omission of petitioner. The issue of whether or

the store-residence of the private respondent, causing

not this act or omission can be considered as a

damages thereto which were inventoried and assessed

"negligent" act or omission was passed upon by the

at P53,024.22. In his answer to the complaint, the

trial court. The findings of said court, affirmed by the

petitioner alleged principally: "that his driver Martin

respondent court, which we are not prepared to now

Belmonte operated said cargo truck in a very diligent

disturb, show that the fact of occurrence of the

(and) careful manner; that the steering wheel refused

"vehicular accident" was sufficiently established by the

to respond to his effort and as a result of a blown-out

policy report and the testimony of Patrolman Masiclat.

tire and despite application of his brakes, the said

And the fact of negligence may be deduced from the

cargo truck hit the store-residence of plaintiff (private

surrounding circumstances thereof. According to the

respondent) and that the said accident was an act of

police report, "the cargo truck was travelling on the

God for which he cannot be held liable." 1 Petitioner

right side of the road going to Manila and then it

also filed a third party complaint against Travellers

crossed to the center line and went to the left side of

Insurance and Surety Corporation, alleging that said

the highway; it then bumped a tricycle; and then

cargo

accident,

another bicycle; and then said cargo truck rammed the

belonging to the petitioner, was insured by the third

store warehouse of the plaintiff." 2 According to the

party defendant insurance company. Petitioner asked

driver of the cargo truck, he applied the brakes but the

that the latter be ordered to pay him whatever amount

latter did not work due to mechanical defect. Contrary

he may be ordered by the court to pay to the private

to the claim of the petitioner, a mishap caused by

respondent. The trial court rendered judgment in favor

defective brakes can not be consideration as fortuitous

of private respondent. Upon appeal to the Court of

in character. Certainly, the defects were curable and

Appeals, the latter court affirmed in toto the decision

the accident preventable. Furthermore, the petitioner

of the trial court, which ordered Petitioner to pay,

failed

jointly and severally with Travellers Insurance and

disputable presumption of negligence on his part in the

Surety Corporation, to the private, respondent the

selection and supervision of his driver. Based on the

following: (a) P53,024.22 as actual damages; (b)

foregoing finding by the respondent Court that there

P10,000.00 as moral damages; (c) P10,000.00 as

was negligence on the part of the petitioner, the

exemplary damages; and (d) the sum of P5,000.00 for

petitioner's contention that the respondent court erred

attorney's fees and the costs. On the third party

in awarding private respondent actual, moral and

complaint, the insurance company was sentenced to

exemplary damages as well as attorney's fees and

pay to the petitioner the following: (a) P50,000.00 for

costs, is untenable. ACCORDINGLY, the petition is

third party liability under its comprehensive accident

DENIED. SO ORDERED. Yap (Chairman), Melencio-

insurance policy; and (b) P3,000.00 for and as

Herrera, Paras and Sarmiento, JJ., concur.

truck

involved

in

the

vehicular

attorney's fees. Hence, this petition for review on

certiorari. Petitioner's contention that the respondent
court erred in finding him guilty of fault or negligence
is not tenable. It was established by competent
evidence that the requisites of a quasi-delict are
present in the case at bar. These requisites are: (1)
damages to the plaintiff; (2) negligence, by act or

to

of

cause

adduce

any

and

effect

evidence

to

8.
[G.R. No. L-44748. August 29, 1986.]

between

overcome

such

the

Page 31 of 96
RADIO COMMUNICATIONS OF THE PHILS., INC.

alleges that the additional words in Tagalog was a

(RCPI), petitioner, vs. COURT OF APPEALS and

private

joke

between

the

sending

and

receiving

LORETO DIONELA, respondents.

operators and that they were not addressed to or

O. Pythagoras Oliver for respondents.

the telegram and that the Tagalog words are not

DECISION

intended for plaintiff and therefore did not form part of

defamatory. The telegram sent through its facilities was
received in its station at Legaspi City. Nobody other

PARAS, J p:

than the operator manned the teletype machine which

Before Us, is a Petition for Review by certiorari of the

The said telegram was detached from the machine and

decision of the Court of Appeals, modifying the

placed inside a sealed envelope and delivered to

decision of the trial court in a civil case for recovery of

plaintiff, obviously as is. The additional words in

damages against petitioner corporation by reducing the

Tagalog were never noticed and were included in the

award to private respondent Loreto Dionela of moral

telegram when delivered.

damages from P40,000 to P15,000, and attorney's fees

from P3,000 to P2,000.
The basis of the complaint against the defendant
corporation is a telegram sent through its Manila
Office to the offended party, Loreto Dionela, reading as
follows:
"176 AS JR 1215 PM 9 PAID
MANDALUYONG JUL 22-66

automatically receives telegrams being transmitted.

The trial court in finding for the plaintiff ruled as

follows:
"There is no question that the additional words in
Tagalog are libelous. They clearly impute a vice or
defect of the plaintiff. Whether or not they were
intended for the plaintiff, the effect on the plaintiff is
the same. Any person reading the additional words in
Tagalog will naturally think that they refer to the
addressee, the plaintiff. There is no indication from the

LORETO DIONELA

face of the telegram that the additional words in

CABANGAN LEGASPI CITY.

operators of the defendant.

WIRE ARRIVAL OF CHECK

"The defendant is sued directly not as an employer.

FER.
LORETO DIONELA CABANGAN WIRE ARRIVAL
OF CHECK-PER.
115 PM.
SA IYO WALANG PAKINABANG DUMATING KA
DIYAN WALA KANG PADALA DITO KAHIT
BULBULMO" (p. 19, Annex "A")
Plaintiff-respondent Loreto Dionela alleges that the
defamatory words on the telegram sent to him not only
wounded his feelings but also caused him undue
embarrassment and affected adversely his business as
well because other people have come to know of said
defamatory words. Defendant-corporation as a defense,

Tagalog were sent as a private joke between the

The business of the defendant is to transmit telegrams.

It will open the door to frauds and allow the defendant
to act with impunity if it can escape liability by the
simple expedient of showing that its employees acted
beyond the scope of their assigned tasks.
"The liability of the defendant is predicated not only on
Article 33 of the Civil Code of the Philippines but on
the following articles of said Code:
"ART. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and
good faith.

Page 32 of 96
"ART. 20. Every person who, contrary to law, wilfully

presumed in the absence of any showing of good

or

intention and justifiable motive on the part of the

negligently

causes

damage

to

another,

shall

indemnify the latter for the same."

appellant. The law implies damages in this instance

"There is sufficient publication of the libelous Tagalog

words. The office file of the defendant containing copies
of telegrams received are open and held together only
by a metal fastener. Moreover, they are open to view
and inspection by third parties.
"It follows that the plaintiff is entitled to damages and
attorney's fees. The plaintiff is a businessman. The
libelous Tagalog words must have affected his business
and social standing in the community. The Court fixes
the amount of P40,000.00 as the reasonable amount of
moral damages and the amount of P3,000.00 as
attorney's fees which the defendant should pay the
plaintiff." (pp. 15-16, Record on Appeal).

(Quemel vs. Court of Appeals, L-22794, January 16,

1968; 22 SCRA 44). The award of P40,000.00 as moral
damages is hereby reduced to P15,000.00 and for
attorney's fees the amount of P2,000.00 is awarded."
(pp. 22-23, record)
After a motion for reconsideration was denied by the
appellate court, petitioner came to Us with the
following:
ASSIGNMENT OF ERRORS.
I
The Honorable Court of Appeals erred in holding that
Petitioner-employer

The respondent appellate court in its assailed decision

confirming the aforegoing findings of the lower court

should

answer

directly

and

primarily for the civil liability arising from the criminal

act of its employee.

stated:

II

"The proximate cause, therefore, resulting in injury to

The Honorable Court of Appeals erred in holding that

appellee, was the failure of the appellant to take the

necessary

or

precautionary

steps

to

avoid

the

occurrence of the humiliating incident now complained

of. The company had not imposed any safeguard
against such eventualities and this void in its operating
procedure does not speak well of its concern for their
clientele's interests. Negligence here is patent. This
negligence is imputable to appellant and not to its
employees.
"The claim that there was no publication of the libelous
words in Tagalog is also without merit. The fact that a
carbon copy of the telegram was filed among other
telegrams and left to hang for the public to see, open

there was sufficient publication of the alleged libelous

telegram in question, as contemplated by law on libel.
III
The Honorable Court of Appeals erred in holding that
the

liability

of

petitioner-company-employer

is

predicated on Articles 19 and 20 of the Civil Code,

Articles on Human Relations.
IV
The Honorable Court of Appeals erred in awarding
Atty's fees. (p. 4, Record).

for inspection by a third party is sufficient publication.

Petitioner's contentions do not merit our consideration.

It would have been otherwise perhaps had the telegram

The action for damages was filed in the lower court

been placed and kept in a secured place where no one

directly against respondent corporation not as an

may have had a chance to read it without appellee's

employer subsidiarily liable under the provisions of

permission.

Article 1161 of the New Civil Code in relation to Art.

"The additional Tagalog words at the bottom of the

telegram are, as correctly found by the lower court,
libelous per se, and from which malice may be

103 of the Revised Penal Code. The cause of action of

the private respondent is based on Arts. 19 and 20 of
the New Civil Code (supra). As well as on respondent's

Page 33 of 96
breach of contract thru the negligence of its own
employees. 1
Petitioner is a domestic corporation engaged in the

THIRD DIVISION
[G.R. Nos. 79050-51. November 14, 1989.]

business of receiving and transmitting messages.

PANTRANCO NORTH EXPRESS, INC. petitioner, vs.

Everytime a person transmits a message through the

MARICAR

facilities of the petitioner, a contract is entered into.

guardian FRANCISCA O. BASCOS, FE O. ICO, in her

Upon receipt of the rate or fee fixed, the petitioner

behalf and in behalf of her minor children, namely

undertakes to transmit the message accurately. There

is no question that in the case at bar, libelous matters
were included in the message transmitted, without the
consent or knowledge of the sender. There is a clear
case of breach of contract by the petitioner in adding
extraneous and libelous matters in the message sent to
the private respondent. As a corporation, the petitioner
can act only through its employees. Hence the acts of

ERWIN,

BASCOS

OLIVE,

BAESA,

EDMUNDO

thru

and

her

personal

SHARON

ICO,

respondents.
Efren N. Ambrosio & Associates for petitioner PNEI.
Emiliano S. Micu for respondents.
SYLLABUS

its employees in receiving and transmitting messages

1.

are the acts of the petitioner. To hold that the petitioner

DOCTRINE; WHEN APPLICABLE. The doctrine of

is not liable directly for the acts of its employees in the

last clear chance applies only in a situation where the

pursuit of petitioner's business is to deprive the

defendant, having the last fair chance to avoid the

general public availing of the services of the petitioner

impending harm and failed to do so, becomes liable for

of an effective and adequate remedy. In most cases,

all the consequences of the accident notwithstanding

negligence must be proved in order that plaintiff may

the prior negligence of the plaintiff.

recover. However, since negligence may be hard to

substantiate in some cases, we may apply the doctrine
of RES IPSA LOQUITUR (the thing speaks for itself), by
considering the presence of facts or circumstances

2.

CIVIL LAW; DAMAGES; LAST CLEAR CHANCE

ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE

APPLICABLE. In order that the doctrine of last clear

chance may be applied, it must be shown that the

surrounding the injury.

person who allegedly had the last opportunity to avert

WHEREFORE, premises considered, the judgment of

with exercise of due care should have been aware of it.

the appellate court is hereby AFFIRMED.

SO ORDERED.
Feria (Chairman), Fernan Alampay, and Gutierrez, Jr.,
JJ., concur.
Footnotes
1.

In contracts the negligence of the employee

(servant) is the negligence of the employer (master).

This is the master and servant rule.

the accident was aware of the existence of the peril or

3.

ID.; ID.; ID.; NOT APPLICABLE TO PERSON

ACTING

INSTANTANEOUSLY

OR

BY

AVAILABLE

MEANS. This doctrine of last chance has no

application to a case where a person is to act
instantaneously, and if the injury cannot be avoided by
using all means available after the peril is or should
have been discovered.
4.

ID.; ID.; PROVISION OF R.A. NO. 4136 RE

VEHICLE ENTERING A THROUGH HIGHWAY OR A

STOP INTERSECTION. Section 43 (c), Article III,
Chapter IV of Republic Act No. 1436 cannot apply to

9.

case a bar where at the time of the accident, the

jeepney had already crossed the intersection.

Page 34 of 96
5.

ID.; ID.; NEGLIGENCE; BURDEN OF PROOF

proceeded to Barrio Capayacan to deliver some viands

LIES ON THE EMPLOYER. A finding of negligence

to one Mrs. Bascos and thenceforth to San Felipe,

on the part of the driver establishes a presumption

taking the highway going to Malalam River. Upon

that the employer has been negligent and the latter has

reaching the highway, the jeepney turned right and

the burden of proof that it has exercised due

proceeded to Malalam River at a speed of about 20

negligence not only in the selection of its employees but

kph. While they were proceeding towards Malalam

also in adequately supervising their work.

River, a speeding PANTRANCO bus from Aparri, on its

6.

ID.; ID.; FAILURE TO PRESENT EVIDENCE TO

SUPPORT CLAIM FOR DAMAGES. Plaintiff's failure

regular route to Manila, encroached on the jeepney's

lane while negotiating a curve, and collided with it.

to present documentary evidence to support their

As a result of the accident David Ico, spouses Ceasar

claim for damages for loss of earning capacity of the

Baesa and Marilyn Baesa and their children, Harold

deceased victim does not bar recovery of the damages,

Jim and Marcelino Baesa, died while the rest of the

if such loss may be based sufficiently on their

passengers

testimonies.

extensively damaged. After the accident the driver of

7.

ID.; ID.; INDEMNITY FIXED AT P30,000. The

indemnity for the death of a person was fixed by this

Court at (P30,000.00).

Petition,

The

jeepney

was

the PANTRANCO Bus, Ambrosio Ramirez, boarded a

car and proceeded to Santiago, Isabela. From that time
on up to the present, Ramirez has never been seen and

All the victims and/or their surviving heirs except

herein private respondents settled the case amicably

CORTES, J p:
this

injuries.

has apparently remained in hiding.

DECISION

In

suffered

under
Pantranco

North

Express

Inc.

(PANTRANCO), asks the Court to review the decision of

the Court of Appeals in CA-G.R. No. 05494-95 which
affirmed the decisions of the Court of First Instance of
Rosales, Pangasinan in Civil Case No. 561-R and Civil
Case No. 589-R wherein PANTRANCO was ordered to
pay damages and attorney's fees to herein private

the

"No

Fault"

insurance

coverage

of

PANTRANCO.
Maricar Baesa through her guardian Francisca O.
Bascos and Fe O. Ico for herself and for her minor
children, filed separate actions for damages arising
from quasi-delict against PANTRANCO, respectively
docketed as Civil Case No. 561-R and 589-R of the

respondents. Cdpr

Court of First Instance of Pangasinan.

The pertinent fact are as follows:

In its answer, PANTRANCO, aside from pointing to the

At about 7:00 o'clock in the morning of June 12, 1981,

cause of the accident, invoked the defense of due

the spouses Ceasar and Marilyn Baesa and their

diligence in the selection and supervision of its driver,

children Harold Jim, Marcelino and Maricar, together

Ambrosio Ramirez. cdll

with spouses David Ico and Fe O. Ico with their son

Erwin Ico and seven other persons, were aboard a
passenger jeepney on their way to a picnic at Malalam
River, Ilagan, Isabela, to celebrate the fifth wedding

late David Ico's alleged negligence as the proximate

On July 3, 1984, the CFI of Pangasinan rendered a

decision

against

PANTRANCO

awarding

the

total

amount of Two Million Three Hundred Four Thousand

anniversary of Ceasar and Marilyn Baesa.

Six Hundred Forty-Seven (P2,304,647.00) as damages,

The group, numbering fifteen (15) persons, rode in the

Maricar Baesa in Civil Case No. 561-R, and the total

passenger jeepney driven by David Ico, who was also

amount of Six Hundred Fifty Two Thousand Six

the registered owner thereof. From Ilagan, Isabela, they

Hundred Seventy-Two Pesos (P652,672.00) as damages,

plus 10% thereof as attorney's fees and costs to

Page 35 of 96
plus 10% thereof as attorney's fees and costs to Fe Ico

A)

and her children in Civil Case No. 589-R. On appeal,

David Ico P30,000.00;

the cases were consolidated and the Court of Appeals

modified the decision of the trial court by ordering
PANTRANCO to pay the total amount of One Million
One Hundred Eighty-Nine Thousand Nine Hundred
Twenty Seven Pesos (P1,189,927.00) as damages, plus
Twenty Thousand Pesos (P20,000.00) as attorney's fees
to Maricar Baesa, and the total amount of Three
Hundred Forty-Four Thousand Pesos (P344,000.00)
plus Ten Thousand Pesos (P10,000.00) as attorney's
fees to Fe Ico and her children, and to pay the costs in
both cases. The dispositive portion of the assailed

B)

As compensatory damages for the death of

For loss of earning capacity of David Ico

P252,000.00;
C)

As moral damages for the death of David Ico

and the injury of Fe Ico P30,000.00

D)

As payment for the jeepney P20,000.00;

E)

For the hospitalization of Fe Ico P12,000.000;

F)

And for attorney's fees P10,000.00;

decision reads as follows:

and to pay the costs in both cases.

WHEREFORE, the decision appealed from is hereby

The amount of P25,000 paid to Maricar Bascos Baesa,

modified by ordering the defendant PANTRANCO North

plaintiff in Civil Case No. 561-R, and the medical

Express, Inc. to pay:

expenses in the sum of P3,273.55, should be deducted

I.

The plaintiff in Civil Case No. 561-R, Maricar

Bascos Baesa, the following damages:

A)

As compensatory damages for the death of

Ceasar Baesa P30,000.00;

B)

As compensatory damages for the death of

Marilyn Baesa P30,000.00;

C)

As compensatory damages for the death of

Harold Jim Baesa and Marcelino Baesa P30,000.00;

D)

For the loss of earnings of Ceasar Baesa

P630,000.00;
E)

For the loss of earnings of Marilyn Bascos

Baesa P375,000.00;
F)

For the burial expenses of the deceased Ceasar

and Marilyn Baesa P41,200.00;

G)

For hospitalization expenses of Maricar Baesa

P3,727.00;
H)

As moral damages P50,000.00;

I)

As attorney's fees P20,000.00;

II.

The plaintiffs in Civil Case No. 589-R, the

following damages:

from the award in her favor. Cdpr

All the foregoing amounts herein awarded except the
costs shall earn interest at the legal rate from date of
this decision until fully paid. [CA Decision, pp. 14-15;
Rollo, pp. 57-58.]
PANTRANCO filed a motion for reconsideration of the
Court of Appeals' decision, but on June 26, 1987, it
denied the same for lack of merit. PANTRANCO then
filed the instant petition for review.
I
Petitioner faults the Court of Appeals for not applying
the doctrine of the "last clear chance" against the
jeepney

driver.

Petitioner

claims

that

under

the

circumstances of the case, it was the driver of the

passenger jeepney who had the last clear chance to
avoid the collision and was therefore negligent in failing
to utilize with reasonable care and competence his
then existing opportunity to avoid the harm.
The doctrine of the last clear chance was defined by
this Court in the case of Ong v. Metropolitan Water
District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means
that the negligence of a claimant does not preclude a

Page 36 of 96
recovery for the negligence of defendant where it

the doctrine to be applicable, it is necessary to show

appears that the latter, by exercising reasonable care

that the person who allegedly had the last opportunity

and

to avert the accident was aware of the existence of the

prudence,

consequences

might

to

have

claimant

avoided

injurious

notwithstanding

his

negligence.

aware of it. One cannot be expected to avoid an

The doctrine applies only in a situation where the

plaintiff was guilty of prior or antecedent negligence
but the defendant, who had the last fair chance to
avoid the impending harm and failed to do so, is made
liable

for

peril or should, with exercise of due care, have been

all

the

consequences

of

the

accident

notwithstanding the prior negligence of the plaintiff

[Picart v. Smith, 37 Phil. 809 (1918); Glan People's
Lumber and Hardware, et al. v. Intermediate Appellate
Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No.
70493, May 18, 1989]. The subsequent negligence of
the defendant in failing to exercise ordinary care to
avoid injury to plaintiff becomes the immediate or
proximate cause of the accident which intervenes
between the accident and the more remote negligence
of the plaintiff, thus making the defendant liable to the
plaintiff [Picart v. Smith, supra].

accident or injury if he does not know or could not

have known the existence of the peril. In this case,
there is nothing to show that the jeepney driver David
Ico knew of the impending danger. When he saw at a
distance that the approaching bus was encroaching on
his lane, he did not immediately swerve the jeepney to
the dirt shoulder on his right since he must have
assumed that the bus driver will return the bus to its
own lane upon seeing the jeepney approaching from
the opposite direction. As held by this Court in the
case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810,
August 31, 1970, 34 SCRA 618, a motorist who is
properly proceeding on his own side of the highway is
generally entitled to assume that an approaching
vehicle coming towards him on the wrong side, will
return to his proper lane of traffic. There was nothing
to indicate to David Ico that the bus could not return

Generally, the last clear chance doctrine is invoked for

the purpose of making a defendant liable to a plaintiff
who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat

to its own lane or was prevented from returning to the

proper lane by anything beyond the control of its
driver. Leo Marantan, an alternate driver of the
Pantranco bus who was seated beside the driver

claim for damages. llcd

Ramirez at the time of the accident, testified that

To avoid liability for the negligence of its driver,

wheel to the left and encroach on the jeepney's lane

petitioner claims that the original negligence of its

because there was a steep precipice on the right [CA

driver was not the proximate cause of the accident and

Decision, p. 2; Rollo, p. 45]. However, this is belied by

that the sole proximate cause was the supervening

the evidence on record which clearly shows that there

negligence of the jeepney driver David Ico in failing to

was enough space to swerve the bus back to its own

avoid the accident. It is petitioner's position that even

lane without any danger [CA Decision, p. 7; Rollo, p.

assuming arguendo, that the bus encroached into the

50].

Ramirez had no choice but to swerve the steering

lane of the jeepney, the driver of the latter could have

swerved

the

jeepney

towards

the

spacious

dirt

shoulder on his right without danger to himself or his

Moreover, both the trial court and the Court of Appeals

found that at the time of the accident the Pantranco

passengers.

bus was speeding towards Manila [CA Decision, p. 2;

The above contention of petitioner is manifestly devoid

that the bus was not returning to its own lane, it was

of merit.

already too late to swerve the jeepney to his right to

Contrary to the petitioner's contention, the doctrine of

"last clear chance" finds no application in this case. For

Rollo, p. 45]. By the time David Ico must have realized

prevent

an

accident.

The

speed

at

which

the

approaching bus was running prevented David Ico

from swerving the jeepney to the right shoulder of the

Page 37 of 96
road in time to avoid the collision. Thus, even
assuming that the jeepney driver perceived the danger
a few seconds before the actual collision, he had no
opportunity to avoid it. This Court has held that the
last clear chance doctrine "can never apply where the
party charged is required to act instantaneously, and if
the injury cannot be avoided by the application of all
means at hand after the peril is or should have been
discovered" [Ong v. Metropolitan Water District, supra].
prcd

II
On the issue of its liability as an employer, petitioner
claims that it had observed the diligence of a good
father of a family to prevent damage, conformably to
the last paragraph of Article 2180 of the Civil Code.
Petitioner adduced evidence to show that in hiring its
drivers, the latter are required to have professional
driver's license and police clearance. The drivers must
also

pass

written

examinations,

interviews

and

practical driving tests, and are required to undergo a

Petitioner likewise insists that David Ico was negligent

six-month

in failing to observe Section 43 (c), Article III Chapter

petitioner's

IV of Republic Act No. 4136 * which provides that the

petitioner's policy of conducting regular and continuing

driver of a vehicle entering a through highway or a stop

training programs and safety seminars for its drivers,

intersection shall yield the right of way to all vehicles

conductors, inspectors and supervisors at a frequency

approaching in either direction on such through

rate of at least two (2) seminars a month.

highway.

training
Training

period.

Rodrigo

Coordinator,

San

Pedro,

testified

on

On this point, the Court quotes with approval the

Petitioner's misplaced reliance on the aforesaid law is

following findings of the trial court which was adopted

readily apparent in this case. The cited law itself

by the Court of Appeals in its challenged decision:

provides that it applies only to vehicles entering a

through highway or a stop intersection. At the time of
the accident, the jeepney had already crossed the
intersection and was on its way to Malalam River.
Petitioner itself cited Fe Ico's testimony that the
accident occurred after the jeepney had travelled a
distance of about two (2) meters from the point of
intersection [Petition p. 10; Rollo, p. 27]. In fact, even
the witness for the petitioner, Leo Marantan, testified
that

both

vehicles

were

coming

from

opposite

directions [CA Decision, p. 7; Rollo, p. 50], clearly

indicating that the jeepney had already crossed the
intersection.

When an injury is caused by the negligence of an

employee, there instantly arises a presumption that the
employer has been negligent either in the selection of
his employees or in the supervision over their acts.
Although

this

presumption is only a disputable

presumption which could be overcome by proof of

diligence of a good father of a family, this Court
believes that the evidence submitted by the defendant
to show that it exercised the diligence of a good father
of a family in the case of Ramirez, as a company driver
is far from sufficient. No support evidence has been
adduced. The professional driver's license of Ramirez
has not been produced. There is no proof that he is

Considering the foregoing, the Court finds that the

between 25 to 38 years old. There is also no proof as to

negligence of petitioner's driver in encroaching into the

his educational attainment, his age, his weight and the

lane of the incoming jeepney and in failing to return

fact that he is married or not. Neither are the result of

the bus to its own lane immediately upon seeing the

the written test, psychological and physical test, among

jeepney coming from the opposite direction was the

other tests, have been submitted in evidence [sic]. His

sole and proximate cause of the accident without

NBI or police clearances and clearances from previous

which the collision would not have occurred. There was

employment were not marked in evidence. No evidence

no supervening or intervening negligence on the part of

was

the jeepney driver which would have made the prior

attended the seminars. Vital evidence should have

negligence of petitioner's driver a mere remote cause of

been the certificate of attendance or certificate of

the accident.

participation or evidence of such participation like a

presented

that

Ramirez

actually

and

really

Page 38 of 96
logbook signed by the trainees when they attended the
seminars. If such records are not available, the
testimony of the classmates that Ramirez was their
classmate

in

said

seminar

(should

have

been

presented) [CA Decision, pp. 8-9; Rollo, pp. 51-52].

LLphil
Petitioner

III
On the question of damages, petitioner claims that the
Court of Appeals erred in fixing the damages for the
loss of earning capacity of the deceased victims.
Petitioner assails respondent court's findings because
no documentary evidence in support thereof, such as

contends

Ambrosio

income tax returns, pay-rolls, pay slips or invoices

Ramirez was employed and remained as its driver only

obtained in the usual course of business, were

means that he underwent the same rigid selection

presented [Petition, p. 22; Rollo, p. 39]. Petitioner

process

strict

argues that the "bare and self-serving testimonies of

supervision imposed by petitioner on all applicants and

the wife of the deceased David Ico and the mother of

employees. It is argued by the petitioner that unless

the deceased Marilyn Baesa . . . have no probative

proven otherwise, it is presumed that petitioner

value

observed

and

conclusion on the respective earnings of the deceased

company polices on safety and efficiency [Petition, p.

victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is

20; Rollo, p. 37].

petitioner's contention that the evidence presented by

and

its

was

that

the

subjected

usual

fact

to

that

the

recruitment

same

procedure

The Court finds the above contention unmeritorious.

The finding of negligence on the part of its driver
Ambrosio Ramirez gave rise to the presumption of
negligence on the part of petitioner and the burden of
proving that it exercised due diligence not only in the
selection of its employees but also in adequately
supervising their work rests with the petitioner [Lilius
v. Manila Railroad Company, 59 Phil. 758 (1934);
Umali v. Bacani, G.R. No. L-40570, June 30, 1976, 69
SCRA 623]. Contrary to petitioner's claim, there is no
presumption that the usual recruitment procedures
and

safety

standards

were

observed.

The

mere

issuance of rules and regulations and the formulation

of various company policies on safety, without showing
that they are being complied with, are not sufficient to
exempt petitioner from liability arising from the
negligence of its employee. It is incumbent upon
petitioner to show that in recruiting and employing the
erring driver, the recruitment procedures and company
policies

on

efficiency

and

safety

were

followed.

Petitioner failed to do this. Hence, the Court finds no

cogent reason to disturb the finding of both the trial

to

sustain

in

law

the

Court

of

Appeals'

the private respondent does not meet the requirements

of clear and satisfactory evidence to prove actual and
compensatory damages.
The Court finds that the Court of Appeals committed
no reversible error in fixing the amount of damages for
the loss of earning capacity of the deceased victims.
While it is true that private respondents should have
presented documentary evidence to support their claim
for damages for loss of earning capacity of the
deceased

victims,

the

absence

thereof

does

not

necessarily bar the recovery of the damages in

question. The testimony of Fe Ico and Francisca Bascos
as to the earning capacity of David Ico, and the
spouses Baesa, respectively, are sufficient to establish
a basis from which the court can make a fair and
reasonable estimate of the damages for the loss of
earning

capacity

of

the

three

deceased

victims.

Moreover, in fixing the damages for loss of earning

capacity of a deceased victim, the court can consider
the

nature

of

his

occupation,

his

educational

attainment and the state of his health at the time of

death.

court and the Court of Appeals that the evidence

In the instant case, David Ico was thirty eight (38)

presented by the petitioner, which consists mainly of

years old at the time of his death in 1981 and was

the

driving his own passenger jeepney. The spouses Ceasar

uncorroborated

Coordinator,

is

testimony

insufficient

of
to

its

Training

overcome

the

presumption of negligence against petitioner. LexLib

and Marilyn Baesa were both thirty (30) years old at

the time of their death. Ceasar Baesa was a commerce

Page 39 of 96
degree holder and the proprietor of the Cauayan Press,
printer of the Cauayan Valley Newspaper and the Valley
Times at Cauayan, Isabela. Marilyn Baesa graduated
as a nurse in 1976 and at the time of her death, was
the company nurse, personnel manager, treasurer and
cashier

of

the

Respondent

Ilagan

court

duly

Press

at

Ilagan,

Isabela.

these

factors,

considered

SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ.,
concur.
Footnotes
*

R.A. 4136 is entitled "An Act to Compile the

together with the uncontradicted testimonies of Fe Ico

Laws Relative to Land Transportation and Traffic

and Francisca Bascos, in fixing the amount of damages

Rules, To Create A Land Transportation Commission

for the loss of earning capacity of David Ico and the

and other Purposes."

spouses Baesa. LibLex

However, it should be pointed out that the Court of
Appeals committed error in fixing the compensatory

10.

damages for the death of Harold Jim Baesa and

Marcelino

Baesa.

Respondent

court

awarded

to

plaintiff (private respondent) Maricar Baesa Thirty

Thousand

Pesos

(P30,000.00)

as

"compensatory

damages for the death of Harold Jim Baesa and

Marcelino Baesa." [CA Decision, p. 14; Rollo, 57]. In
other words, the Court of Appeals awarded only Fifteen
Thousand Pesos (P15,000.00) as indemnity for the
death of Harold Jim Baesa and another Fifteen
Thousand

Pesos

(P15,000.00)

for

the

death

of

Marcelino Baesa. This is clearly erroneous. In the case

of People v. de la Fuente, G.R. Nos. 63251-52,

SECOND DIVISION
[G.R. No. 57079. September 29, 1989.]
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC.
petitioner, vs. COURT OF APPEALS and SPOUSES
ANTONIO

ESTEBAN

and

GLORIA

ESTEBAN,

respondents.
SYLLABUS

December 29, 1983, 126 SCRA 518, the indemnity for

1.

the death of a person was fixed by this Court at Thirty

RECONSIDERATION;

Thousand Pesos (P30,000.00). Plaintiff Maricar Baesa

RECONSIDERATION MUST BE FILED WITHIN THE

should therefore be awarded Sixty Thousand Pesos

FIFTEEN (15) DAY PERIOD DEDUCTING THEREFROM

(P60,000.00) as indemnity for the death of her

THE TIME IN WHICH THE FIRST MOTION WAS

brothers, Harold Jim Baesa and Marcelino Baesa or

PENDING. Section 1, Rule 52 of the Rules of Court,

Thirty Thousand Pesos (P30,000.00) for the death of

which had procedural governance at the time, provided

each brother.

that a second motion for reconsideration may be

The other items of damages awarded by respondent

court which were not challenged by the petitioner are
hereby affirmed.
WHEREFORE, premises considered, the petition is
DENIED, and the decision of respondent Court of
Appeals is hereby AFFIRMED with the modification
that the amount of compensatory damages for the
death of Harold Jim Baesa and Marcelino Baesa are
increased to Thirty Thousand Pesos (P30,000.00) each.
LLphil

REMEDIAL

LAW;

ACTIONS

SECOND

MOTION
MOTION

FOR
FOR

presented within fifteen (15) days from notice of the

order or judgment deducting the time in which the first
motion has been pending. Private respondents having
filed their first motion for reconsideration on the last
day of the reglementary period of fifteen (15) days
within which to do so, they had only one (1) day from
receipt of the order denying said motion to file, with
leave of court, a second motion for reconsideration.
2.

ID.; ID.; ID.; OPTIONS OF PARTY WHERE HIS

MOTION FOR RECONSIDERATION WAS DENIED;

Page 40 of 96
CASE AT BAR. In the present case, after their

power and jurisdiction of the court which rendered it to

receipt on February 22, 1980 of the resolution denying

further alter or amend, much less revoke it. The

their

private

decision rendered anew is null and void. The court's

respondents had two remedial options. On February

first

inherent power to correct its own errors should be

23, 1980, the remaining one (1) day of the aforesaid

exercised before the finality of the decision or order

reglementary period, they could have filed a motion for

sought to be corrected, otherwise litigation will be

leave

endless and no question could be considered finally

of

motion

court

to

for

file

reconsideration,

second

motion

for

reconsideration, conceivably with a prayer for the

extension of the period within which to do so. On the
other hand, they could have appealed through a
petition for review on certiorari to this Court within
fifteen (15) days from February 23, 1980. Instead, they
filed a motion for leave to file a second motion 'for
reconsideration on February 29, 1980, and said second
motion for reconsideration on March 7, 1980, both of
which motions were by then time-barred.
3.

ID.; ID.; EXPIRATION OF THE FIFTEEN (15)

DAY

PERIOD,

DEPRIVES

THE

COURT

OF

JURISDICTION TO TAKE FURTHER PROCEEDINGS

ON THE CASE. After the expiration on February 24,
1980 of the original fifteen (15) day period, the running
of which was suspended during the pendency of the
first motion for reconsideration, the Court of Appeals
could no longer validly take further proceedings on the
merits of the case, much less to alter, modify or
reconsider its aforesaid decision and or resolution. The
filing of the motion for leave to file a second motion for
reconsideration by herein respondents on February 29,
1980 and the subsequent filing of the motion itself on
March 7, 1980, after the expiration of the reglementary
period to file the same, produced no legal effects. Only
a motion for re-hearing or reconsideration filed in time
shall stay the final order or judgment sought to be reexamined.
4.

MUST BE FILED PRIOR TO THE EXPIRATION OF THE

SOUGHT

TO

BE

EXTENDED.

An

application for extension of time must be filed prior to

the expiration of the period sought to be extended.
5.

6.

ID.; ID.; MOTION FOR RECONSIDERATION;

GRANT THEREOF RESTS ON THE SOUND JUDICIAL

DISCRETION. Although the granting or denial of a
motion for reconsideration involves the exercise of
discretion,

the

same

should

not

be

exercised

whimsically, capriciously or arbitrarily, but prudently

in conformity with law, justice, reason and equity.
7.

ID.; EVIDENCE; FINDINGS OF FACT OF THE

COURT OF APPEALS CONTRARY TO THAT OF THE

TRIAL COURT, UPHELD ON APPEAL. We find no
error in the findings of the respondent court in its
original decision that the accident which befell private
respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment
and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24,
1980.
8.

CIVIL LAW; OBLIGATIONS AND CONTRACTS;

EXTRA-CONTRACTUAL
DELICT;

OMISSION

OBLIGATIONS;
TO

PERFORM

QUASIA

DUTY

CONSTITUTES THE PROXIMATE CAUSE ONLY WHEN

THE DOING OF SUCH WOULD HAVE PREVENTED
THE INJURY. The omission to perform a duty, such

ID.; ID.; MOTION FOR EXTENSION OF TIME

PERIOD

settled.

ID.; ID.; JUDGMENT; FINALITY OF DECISION,

DIVEST THE COURT OF JURISDICTION TO ALTER OR

AMEND, MUCH LESS REVOKE IT. Once a decision
has become final and executory it is removed from the

as the placing of warning signs on the site of the

excavation, constitutes the proximate cause only when
the doing of the said omitted act would have prevented
the injury.
9.

ID.; DAMAGES; A PARTY CANNOT CHARGE

ANOTHER FOR THE DAMAGE CAUSED BY HIS OWN

NEGLIGENCE. It is basic that private respondents
cannot charge PLDT for their injuries where their own
failure to exercise due and reasonable care was the

Page 41 of 96
cause thereof. It is both a societal norm and necessity

permanent scar on her cheek, while the respondent

that one should exercise a reasonable degree of caution

husband suffered cut lips. In addition, the windshield

for

of the jeep was shattered. 2

his

own

Antonio

protection.

Esteban

had

Furthermore,

the

last

clear

respondent
chance

or

opportunity to avoid the accident, notwithstanding the

negligence he imputes to petitioner PLDT. As a resident
of Lacson Street, he passed on that street almost
everyday and had knowledge of the presence and
location of the excavations there. It was his negligence
that exposed him and his wife to danger, hence he is
solely

responsible

for

the

consequences

of

his

imprudence.
10.

PLDT, in its answer, denies liability on the contention

that the injuries sustained by respondent spouses were
the result of their own negligence and that the entity
which should be held responsible, if at all, is L.R. Barte
and Company (Barte, for short), an independent
contractor which undertook the construction of the
manhole and the conduit system. 3 Accordingly, PLDT
filed a third-party complaint against Barte alleging
that, under the terms of their agreement, PLDT should

REMEDIAL LAW; EVIDENCE; BURDEN OF

in no manner be answerable for any accident or

PROOF AND PRESUMPTIONS; A PERSON CLAIMING

injuries arising from the negligence or carelessness of

DAMAGES HAS THE BURDEN OF PROVING THE

Barte or any of its employees. 4 In answer thereto,

EXISTENCE

OF

Barte claimed that it was not aware nor was it notified

ANOTHER CAUSING THE DAMAGE. A person

of the accident involving respondent spouses and that

claiming damages for the negligence of another has the

it had complied with the terms of its contract with

burden of proving the existence of such fault or

PLDT by installing the necessary and appropriate

negligence causative thereof. The facts constitutive of

standard signs in the vicinity of the work site, with

negligence

by

barricades at both ends of the excavation and with red

competent evidence. Whosoever relies on negligence for

lights at night along the excavated area to warn the

his cause of action has the burden in the first instance

traveling public of the presence of excavations. 5

OF

must

FAULT

be

OR

NEGLIGENCE

affirmatively

established

of proving the existence of the same if contested,

otherwise his action must fail.

On October 1, 1974, the trial court rendered a decision

in favor of private respondents, the decretal part of

DECISION

which reads:

REGALADO, J p:

"IN VIEW OF THE FOREGOING considerations the

This case had its inception in an action for damages

instituted in the former Court of First Instance of
Negros Occidental 1 by private respondent spouses
against petitioner Philippine Long Distance Telephone
Company (PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when their
jeep ran over a mound of earth and fell into an open
trench, an excavation allegedly undertaken by PLDT for
the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban

defendant

Philippine

Long

Distance

Telephone

Company is hereby ordered (A) to pay the plaintiff

Gloria Esteban the sum of P20,000.00 as moral
damages

and

P5,000.00

exemplary

damages;

to

plaintiff Antonio Esteban the sum of P2,000.00 as

moral damages and P500.00 as exemplary damages,
with legal rate of interest from the date of the filing of
the complaint until fully paid. The defendant is hereby
ordered to pay the plaintiff the sum of P3,000.00 as
attorney's fees.

failed to notice the open trench which was left

(B)

uncovered because of the creeping darkness and the

reimburse whatever amount the defendant-third party

lack of any warning light or signs. As a result of the

plaintiff has paid to the plaintiff. With costs against the

accident,

defendant." 6

respondent

Gloria

Esteban

allegedly

sustained injuries on her arms, legs and face, leaving a

The third-party defendant is hereby ordered to

Page 42 of 96
From this decision both PLDT and private respondents

of September 3, 1980, contending that the second

appealed, the latter appealing only as to the amount of

motion

damages. Third-party defendant Barte did not appeal.

spouses was filed out of time and that the decision of

On September 25, 1979, the Special Second Division of

the Court of Appeals rendered a decision in said
appealed case, with Justice Corazon Juliano Agrava as
ponente, reversing the decision of the lower court and
dismissing the complaint of respondent spouses. It
held that respondent Esteban spouses were negligent
and consequently absolved petitioner PLDT from the
claim for damages. 7 A copy of this decision was
received by private respondents on October 10, 1979, 8
On October 25, 1979, said respondents filed a motion
for reconsideration dated October 24, 1979. 9 On

for

reconsideration

of

private

respondent

September 25, 1979 penned by Justice Agrava was

already final. It further submitted therein that the
relationship of Barte and petitioner PLDT should be
viewed in the light of the contract between them and,
under the independent contractor rule, PLDT is not
liable for the acts of an independent contractor. 18 On
May

11,

1981,

respondent

Court

of

Appeals

promulgated its resolution denying said motion to set

aside and/or for reconsideration and affirming in toto
the decision of the lower court dated October 1, 1974.
19

January 24, 1980, the Special Ninth Division of the

Coming to this Court on a petition for review on

Court

certiorari, petitioner assigns the following errors:

of

Appeals

denied

said

motion

for

reconsideration. 10 This resolution was received by

respondent spouses on February 22, 1980. 11

1.

Respondent Court of Appeals erred in not

denying

private

respondents'

second

motion

for

On February 29, 1980, respondent Court of Appeals

reconsideration on the ground that the decision of the

received private respondents' motion for leave of court

Special Second Division, dated September 25, 1979,

to file a second motion for reconsideration, dated

and the resolution of the Special Ninth Division, dated

February 27, 1980. 12 On March 11, 1980, respondent

January 24, 1980, are already final, and on the

court, in a resolution likewise penned by Justice

additional

Agrava, allowed respondents to file a second motion for

reconsideration is pro forma.

reconsideration, within ten (10) days from notice

thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for
reconsideration on March 7, 1980. 14
On April 30, 1980 petitioner PLDT filed an opposition
to and or motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of
the divergent opinions on the resolution of the second
motion for reconsideration, designated two additional
justices to form a division of five. 16 On September 3,
1980, said division of five promulgated its resolution,
penned by Justice Mariano A. Zosa, setting aside the

2.

ground

Respondent

that

court

said

erred

the

to respondent Esteban spouses.

A convenient resume of the relevant proceedings in the
respondent court, as shown by the records and
admitted by both parties, may be graphically presented
as follows:
(a)

September 25, 1979, a decision was rendered

by the Court of Appeals with Justice Agrava as

ponente;

resolution dated January 24, 1980, and affirming in

received by private respondents;

to set aside and/or for reconsideration of the resolution

reversing

for

the independent contractor rule in holding PLDT liable

(b)

On September 19, 1980, petitioner PLDT filed a motion

in

motion

aforesaid decision and resolution and in misapplying

decision dated September 25, 1979, as well as the

toto the decision of the lower court. 17

second

(c)

October 10, 1979, a copy of said decision was

October 25, 1979, a motion for reconsideration

was filed by private respondents;

Page 43 of 96
(d)

January 24, 1980, a resolution was issued

denying said motion for reconsideration;

(e)

fifteen (15) days from February 23, 1980. 22 Instead,

February 22, 1980, a copy of said denial

resolution was received by private respondents;

(f)

second motion for reconsideration was filed by private

respondents;
March

they filed a motion for leave to file a second motion for

reconsideration on February 29, 1980, and said second
motion for reconsideration on March 7, 1980, both of

February 29, 1980, a motion for leave to file a

(g)

a petition for review on certiorari to this Court within

which motions were by then time-barred.

Consequently, after the expiration on February 24,
1980 of the original fifteen (15) day period, the running

7,

1980,

second

motion

for

of which was suspended during the pendency of the

reconsideration was filed by private respondents;

first motion for reconsideration, the Court of Appeals

(h)

could no longer validly take further proceedings on the

March 11, 1980, a resolution was issued

merits of the case, much less to alter, modify or

allowing respondents to file a second motion for

reconsider its aforesaid decision and or resolution. The

reconsideration within ten (10) days from receipt; and

filing of the motion for leave to file a second motion for

(i)

September 3, 1980, a resolution was issued,

penned by Justice Zosa, reversing the original decision

dated September 25, 1979 and setting aside the
resolution dated January 24, 1980.

both the motion for leave to file a second motion for

reconsideration and, consequently, said second motion
for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had
procedural governance at the time, provided that a
second motion for reconsideration may be presented
within fifteen (15) days from notice of the order or
judgment deducting the time in which the first motion
has been pending. 20 Private respondents having filed
their first motion for reconsideration on the last day of
the reglementary period of fifteen (15) days within
which to do so, they had only one (1) day from receipt
of the order denying said motion to file, with leave of
court, a second motion for reconsideration. 21 In the
present case, after their receipt on February 22, 1980
the

resolution

denying

their

1980 and the subsequent filing of the motion itself on

March 7, 1980, after the expiration of the reglementary
period to file the same, produced no legal effects. Only
a motion for re-hearing or reconsideration filed in time

From the foregoing chronology, we are convinced that

of

reconsideration by herein respondents on February 29,

first

motion for

reconsideration, private respondents had two remedial

options. On February 23, 1980, the remaining one (1)
day of the aforesaid reglementary period, they could
have filed a motion for leave of court to file a second
motion for reconsideration, conceivably with a prayer
for the extension of the period within which to do so.
On the other hand, they could have appealed through

shall stay the final order or judgment sought to be reexamined. 23

The consequential result is that the resolution of
respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving
them an extension often (10) days to file a second
motion for reconsideration, is null and void. The period
for filing a second motion for reconsideration had
already expired when private respondents sought leave
to file the same, and respondent court no longer had
the power to entertain or grant the said motion. The
aforesaid extension of ten (10) days for private
respondents

to

file

their

second

motion

for

reconsideration was of no legal consequence since it

was given when there was no more period to extend. It
is an elementary rule that an application for extension
of time must be filed prior to the expiration of the
period sought to be extended. 24 Necessarily, the
discretion of respondent court to grant said extension
for filing a second motion for reconsideration is
conditioned upon the timeliness of the motion seeking
the same.
No

appeal

having

been

taken

seasonably,

the

respondent court's decision, dated September 25,

Page 44 of 96
1979, became final and executory on March 9, 1980.

inside lane. That may explain plaintiff-husband's

The subsequent resolutions of respondent court, dated

insistence that he did not see the ACCIDENT MOUND

March 11, 1980 and September 3, 1980, allowing

for which reason he ran into it.

private respondents to file a second motion for

reconsideration and reversing the original decision are
null and void and cannot disturb the finality of the
judgment nor restore jurisdiction to respondent court.
This is but in line with the accepted rule that once a
decision has become final and executory it is removed
from the power and jurisdiction of the court which
rendered it to further alter or amend, much less revoke
it. 25 The decision rendered anew is null and void. 26
The court's inherent power to correct its own errors
should be exercised before the finality of the decision
or order sought to be corrected, otherwise litigation will
be endless and no question could be considered finally
settled. Although the granting or denial of a motion for
reconsideration involves the exercise of discretion, 27
the

same

should

not

be

exercised

whimsically,

"Second. That plaintiff's Jeep was on the inside lane

before it swerved to hit the ACCIDENT MOUND could
have been corroborated by a picture showing Lacson
Street to the south of the ACCIDENT MOUND.
"It has been stated that the ditches along Lacson Street
had already been covered except the 3 or 4 meters
where the ACCIDENT MOUND was located. Exhibit B-1
shows that the ditches on Lacson Street north of the
ACCIDENT MOUND had already been covered, but not
in such a way as to allow the outer lane to be freely
and conveniently passable to vehicles. The situation
could have been worse to the south of the ACCIDENT
MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.

capriciously or arbitrarily, but prudently in conformity

Third. Plaintiff's jeep was not running at 25 kilometers

with law, justice, reason and equity. 28

an hour as plaintiff-husband claimed. At that speed,

Prescinding from the aforesaid procedural lapses into

the substantive merits of the case, we find no error in
the findings of the respondent court in its original
decision

that

the

accident

which

befell

private

respondents was due to the lack of diligence of

respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment

he could have braked the vehicle the moment it struck

the ACCIDENT MOUND. The jeep would not have
climbed

the

ACCIDENT

MOUND

several

feet

as

indicated by the tiremarks in Exhibit B. The jeep must

have been running quite fast. If the jeep had been
braked at 25 kilometers an hour, plaintiffs would not
have been thrown against the windshield and they
would not have suffered their injuries.

and evaluation of the evidence on record, as evidenced

"Fourth. If the accident did not happen because the

by the respondent court's resolution of January 24,

jeep was running quite fast on the inside lane and for

1980 which we quote with approval:

some reason or other it had to swerve suddenly to the

"First. Plaintiff's jeep was running along the inside lane

of Lacson Street. If it had remained on that inside lane,
it would not have hit the ACCIDENT MOUND.
"Exhibit B shows, through the tiremarks, that the
ACCIDENT MOUND was hit by the jeep swerving from
the left that is, swerving from the inside lane. What
caused the swerving is not disclosed; but, as the cause
of the accident, defendant cannot be made liable for
the damages suffered by plaintiffs. The accident was
not due to the absence of warning signs, but to the
unexplained abrupt swerving of the jeep from the

right and had to climb over the ACCIDENT MOUND,

then plaintiff-husband had not exercised the diligence
of a good father of a family to avoid the accident. With
the drizzle, he should not have run on dim lights, but
should have put on his regular lights which should
have made him see the ACCIDENT MOUND in time. If
he was running on the outside lane at 25 kilometers an
hour, even on dim lights, his failure to see the
ACCIDENT MOUND in time to brake the car was
negligence on his part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3 feet high and 11/2 feet wide. If he did not see the ACCIDENT MOUND

Page 45 of 96
in time, he would not have seen any warning sign

excavations there. It was his negligence that exposed

either. He knew of the existence and location of the

him and his wife to danger, hence he is solely

ACCIDENT MOUND, having seen it many previous

responsible for the consequences of his imprudence.

times. With ordinary precaution, he should have driven

LibLex

his jeep on the night of the accident so as to avoid

hitting the ACCIDENT MOUND." 29

Moreover, we also sustain the findings of respondent

Court of Appeals in its original decision that there was

The above findings clearly show that the negligence of

insufficient evidence to prove any negligence on the

respondent Antonio Esteban was not only contributory

part of PLDT. We have for consideration only the self-

to his injuries and those of his wife but goes to the very

serving testimony of respondent Antonio Esteban and

cause of the occurrence of the accident, as one of its

the unverified photograph of merely a portion of the

determining factors, and thereby precludes their right

scene of the accident. The absence of a police report of

to recover damages. 30 The perils of the road were

the incident and the non-submission of a medical

known to, hence appreciated and assumed by, private

report from the hospital where private respondents

respondents.

were allegedly treated have not even been satisfactorily

By

exercising

reasonable

care

and

prudence, respondent Antonio Esteban could have

avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged
negligence on the part of petitioner.
The

presence

of

warning

signs

could

not

have

completely prevented the accident; the only purpose of

said signs was to inform and warn the public of the
presence of excavations on the site. The private
respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to
fall into the excavation but the unexplained sudden
swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the
omission to perform a duty, such as the placing of
warning signs on the site of the excavation, constitutes
the proximate cause only when the doing of the said
omitted act would have prevented the injury. 31 It is
basic that private respondents cannot charge PLDT for
their injuries where their own failure to exercise due
and reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last
clear chance or opportunity to avoid the accident,
notwithstanding

the

negligence

he

imputes

to

petitioner PLDT. As a resident of Lacson Street, he

passed on that street almost everyday and had
knowledge

of

the

presence

and

location

of

the

explained.
As aptly observed by respondent court in its aforecited
extended resolution of January 24, 1980
"(a)

There was no third party eyewitness of the

accident. As to how the accident occurred, the Court

can only rely on the testimonial evidence of plaintiffs
themselves, and such evidence should be very carefully
evaluated, with defendant, as the party being charged,
being given the benefit of any doubt. Definitely without
ascribing the same motivation to plaintiffs, another
person could have deliberately engineered a similar
accident in the hope and expectation that the Court
can grant him substantial moral and exemplary
damages from the big corporation that defendant is.
The

statement

is

made

only

to

stress

the

disadvantageous position of defendant which would

have extreme difficulty in contesting such person's
claim. If there were no witness or record available from
the police department of Bacolod, defendant would not
be able to determine for itself which of the conflicting
testimonies of plaintiffs is correct as to the report or
non-report of the accident to the police department."
32
A person claiming damages for the negligence of
another has the burden of proving the existence of
such fault or negligence causative thereof. The facts
constitutive

of

negligence

must

be

affirmatively

established by competent evidence. 33 Whosoever

Page 46 of 96
relies on negligence for his cause of action has the

on "bright" and thereupon he saw a Ford dump truck

burden in the first instance of proving the existence of

looming some 2-1/2 meters away from his car. The

the same if contested, otherwise his action must fail.

dump truck, owned by and registered in the name of

LLpr

petitioner Phoenix Construction Inc. ("Phoenix"), was

WHEREFORE, the resolutions of respondent Court of

Appeals, dated March 11, 1980 and September 3,
1980, are hereby SET ASIDE. Its original decision,
promulgated

on

September

25,

1979,

is

hereby

REINSTATED and AFFIRMED.

parked on the right hand side of General Lacuna Street

(i.e., on the right hand side of a person facing in the
same direction toward which Dionisio's car was
proceeding), facing the oncoming traffic. The dump
truck was parked askew (not parallel to the street curb)
in such a manner as to stick out onto the street, partly

SO ORDERED.

blocking the way of oncoming traffic. There were no

Melencio-Herrera, Paras, Padilla and Sarmiento, JJ.,

devices set anywhere near the dump truck, front or

concur.

rear. The dump truck had earlier that evening been

lights nor any so-called "early warning" reflector

driven home by petitioner Armando U. Carbonel, its

regular driver, with the permission of his employer
Phoenix, in view of work scheduled to be carried out
early the following morning. Dionisio claimed that he
11.

tried to avoid a collision by swerving his car to the left

but it was too late and his car smashed into the dump

FIRST DIVISION

truck. As a result of the collision, Dionisio suffered

[G.R. No. 65295. March 10, 1987.]

some physical injuries including some permanent

PHOENIX CONSTRUCTION, INC. and ARMANDO U.

gold bridge dentures. LLpr

facial scars, a "nervous breakdown" and loss of two

CARBONEL, petitioners, vs. THE INTERMEDIATE

APPELLATE

COURT

and

LEONARDO

DIONISIO,

respondents.

the negligent manner in which Carbonel had parked

the dump truck entrusted to him by his employer
Phoenix. Phoenix and Carbonel, on the other hand,

FELICIANO, J p:
In the early morning of 15 November 1975 at about
1:30 a.m. private respondent Leonardo Dionisio was
on his way home he lived in 1214-B Zamora Street,
Makati

Court of First Instance of Pampanga basically claiming

that the legal and proximate cause of his injuries was

DECISION

Bangkal,

Dionisio commenced an action for damages in the

from

cocktails-and-dinner

meeting with his boss, the general manager of a

marketing corporation. During the cocktails phase of
the evening, Dionisio had taken "a shot or two" of

countered that the proximate cause of Dionisio's

injuries was his own recklessness in driving fast at the
time of the accident, while under the influence of
liquor, without his headlights on and without a curfew
pass. Phoenix also sought to establish that it had
exercised due care in the selection and supervision of
the dump truck driver.

liquor. Dionisio was driving his Volkswagen car and

The trial court rendered judgment in favor of Dionisio

had just crossed the intersection of General Lacuna

and against Phoenix and Carbonel and ordered the

and General Santos Streets at Bangkal, Makati, not far

latter:

from his home, and was proceeding down General

Lacuna Street, when his car headlights (in his
allegation) suddenly failed. He switched his headlights

"(1)

To pay plaintiff jointly and severally the sum of

P15,000.00 for hospital bills and the replacement of

the lost dentures of plaintiff;

Page 47 of 96
(2)

To pay plaintiff jointly and severally the sum of

The award of P10,000.00 as exemplary damages and

P150,000.00 as loss of expected income for plaintiff

P4,500.00 as attorney's fees and costs remained

brought about the accident in controversy and which is

untouched.

the result of the negligence of the defendants;

(3)

This decision of the Intermediate Appellate Court is

To pay the plaintiff jointly and severally the

sum of P100,000.00 as moral damages for the

unexpected and sudden withdrawal of plaintiff from his
lifetime career as a marketing man; mental anguish,
wounded feeling, serious anxiety, social humiliation,
besmirched reputation, feeling of economic insecurity,
and

the

untold

sorrows

and

frustration

in

life

experienced by plaintiff and his family since the

accident in controversy up to the present time;
(4)

now before us on a petition for review.

Both the trial court and the appellate court had made
fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General
Lacuna Street on the basis of which both courts drew
the inference that there was negligence on the part of
Carbonel, the dump truck driver, and that this
negligence was the proximate cause of the accident
and Dionisio's injuries. We note, however, that both

To pay plaintiff jointly and severally the sum of

courts failed to pass upon the defense raised by

P10,000.00 as exemplary damages for the wanton

Carbonel

disregard of defendants to settle amicably this case

proximate cause of the accident was not the way in

with the plaintiff before the filing of this case in court

which the dump truck had been parked but rather the

for a smaller amount.

reckless way in which Dionisio had driven his car that

(5)

To pay the plaintiff jointly and severally the

sum of P4,500.00 due as and for attorney's fees; and

(6)

and

Phoenix

that

the

true

legal

and

night when he smashed into the dump truck. The

Intermediate Appellate Court in its questioned decision
casually conceded that Dionisio was "in some way,
negligent" but apparently failed to see the relevance of

The cost of suit." (Emphasis supplied).

Dionisio's negligence and made no further mention of

Phoenix and Carbonel appealed to the Intermediate

it. We have examined the record both before the trial

Appellate Court. That court in CA-G.R. No. 65476

court and the Intermediate Appellate Court and we

affirmed the decision of the trial court but modified the

find that both parties had placed into the record

award of damages to the following extent:

sufficient evidence on the basis of which the trial court

1.

The award of P15,000.00 as compensatory

damages was reduced to P6,460.71, the latter being

the only amount that the appellate court found the
plaintiff to have proved as actually sustained by him;
2.

The award of P150,000.00 as loss of expected

Dionisio had voluntarily resigned his job such that, in

the opinion of the appellate court, his loss of income
not

solely

attributable

to

the

accident

made findings of fact relating to the alleged reckless

manner in which Dionisio drove his car that night. The
petitioners Phoenix and Carbonel contend that if there
was negligence in the manner in which the dump truck

income was reduced to P100,000.00, basically because

"was

and the appellate court could have and should have

in

was parked, that negligence was merely a "passive and

static condition" and that private respondent Dionisio's
recklessness constituted an intervening, efficient cause
determinative of the accident and the injuries he
sustained. The need to administer substantial justice

question;" and

as between the parties in this case, without having to

3.

remand it back to the trial court after eleven years,

The award of P100,000.00 as moral damages

compels us to address directly the contention put

was held by the appellate court as excessive and

forward by the petitioners and to examine for ourselves

unconscionable and hence reduced to P50,000.00.

the record pertaining to Dionisio's alleged negligence

Page 48 of 96
which must bear upon the liability, or extent of liability,

and whether he had indeed purposely put out his

of Phoenix and Carbonel. llcd

headlights before the accident, in order to avoid

There are four factual issues that need to be looked

into: (a) whether or not private respondent Dionisio
had a curfew pass valid and effective for that eventful

detection and possibly arrest by the police in the

nearby police station for travelling after the onset of
curfew without a valid curfew pass. LibLex

night; (b) whether Dionisio was driving fast or speeding

On the second issue whether or not Dionisio was

just before the collision with the dump truck; (c)

speeding home that night both the trial court and

whether Dionisio had purposely turned off his car's

the appellate court were completely silent.

headlights before contact with the dump truck or

whether those headlights accidentally malfunctioned
moments before the collision; and (d) whether Dionisio
was intoxicated at the time of the accident.

The defendants in the trial court introduced the

testimony of Patrolman Cuyno who was at the scene of
the accident almost immediately after it occurred, the
police station where he was based being barely 200

As to the first issue relating to the curfew pass, it is

meters away. Patrolman Cuyno testified that people

clear that no curfew pass was found on the person of

who had gathered at the scene of the accident told him

Dionisio immediately after the accident nor was any

that Dionisio's car was "moving fast" and did not have

found in his car. Phoenix's evidence here consisted of

its headlights on. 2 Dionisio, on the other hand,

the testimony of Patrolman Cuyno who had taken

claimed that he was travelling at a moderate speed at

Dionisio, unconscious, to the Makati Medical Center

30 kilometers per hour and had just crossed the

for

the

intersection of General Santos and General Lacuna

accident. At the Makati Medical Center, a nurse took

Streets and had started to accelerate when his

off Dionisio's clothes and examined them along with

headlights failed just before the collision took place. 3

emergency

treatment

immediately

after

the contents of pockets together with Patrolman

Cuyno. 1 Private respondent Dionisio was not able to
produce any curfew pass during the trial. Instead, he
offered the explanation that his family may have
misplaced

his

curfew

pass.

He

also

offered

certification (dated two years after the accident) issued

by one Major Benjamin N. Libarnes of the Zone
Integrated Police Intelligence Unit of Camp Olivas, San
Fernando, Pampanga, which was said to have authority
to issue curfew passes for Pampanga and Metro
Manila. This certification was to the effect that private
respondent Dionisio had a valid curfew pass. This
certification did not, however, specify any pass serial
number or date or period of effectivity of the supposed
curfew pass. We find that private respondent Dionisio
was unable to prove possession of a valid curfew pass
during the night of the accident and that the
preponderance of evidence shows that he did not have
such a pass during that night. The relevance of
possession or non-possession of a curfew pass that
night lies in the light it tends to shed on the other
related issues: whether Dionisio was speeding home

Private respondent Dionisio asserts that Patrolman

Cuyno's testimony was hearsay and did not fall within
any of the recognized exceptions to the hearsay rule
since the facts he testified to were not acquired by him
through official information and had not been given by
the informants pursuant to any duty to do so. Private
respondent's objection fails to take account of the fact
that the testimony of Patrolman Cuyno is admissible
not under the official records exception to the hearsay
rule 4 but rather as part of the res gestae. 5
Testimonial evidence under this exception to the
hearsay rule consists of excited utterances made on
the occasion of an occurrence or event sufficiently
startling in nature so as to render inoperative the
normal reflective thought processes of the observer and
hence

made

as

spontaneous

reaction

to

the

occurrence or event, and not the result of reflective

thought. 6
We think that an automobile speeding down a street
and suddenly smashing into a stationary object in the
dead of night is a sufficiently startling event as to

Page 49 of 96
evoke spontaneous, rather than reflective, reactions

show how much liquor he had in fact taken and the

from observers who happened to be around at that

effects of that upon his physical faculties or upon his

time. The testimony of Patrolman Cuyno was therefore

judgment or mental alertness. We are also aware that

admissible as part of the res gestae and should have

"one shot or two" of hard liquor may affect different

been considered by the trial court. Clearly, substantial

people differently.

weight should have been ascribed to such testimony,

even though it did not, as it could not, have purported
to describe quantitatively the precise velocity at which
Dionisio was travelling just before impact with the
Phoenix dump truck.

The

conclusion

circumstances

we

draw

outlined

from

the

factual

is

that

private

above

respondent Dionisio was negligent the night of the

accident. He was hurrying home that night and driving
faster

than

he

should

have

been.

Worse,

he

A third related issue is whether Dionisio purposely

extinguished his headlights at or near the intersection

turned off his headlights, or whether his headlights

of General Lacuna and General Santos Streets and

accidentally malfunctioned, just moments before the

thus did not see the dump truck that was parked

accident. The Intermediate Appellate Court expressly

askew and sticking out onto the road lane.

found that the headlights of Dionisio's car went off as

he crossed the intersection but was non-committal as
to why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before
he reached the intersection so as not to be detected by
the police in the police precinct which he (being a
resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is a
more credible explanation than that offered by private
respondent Dionisio i.e., that he had his headlights
on but that, at the crucial moment, these had in some
mysterious if convenient way malfunctioned and gone
off, although he succeeded in switching his lights on
again at "bright" split seconds before contact with the
dump truck. prcd
A fourth and final issue relates to whether Dionisio
was intoxicated at the time of the accident. The
evidence here consisted of the testimony of Patrolman
Cuyno to the effect that private respondent Dionisio
smelled of liquor at the time he was taken from his
smashed car and brought to the Makati Medical Center
in an unconscious condition. 7 This testimony has to
be taken in conjunction with the admission of Dionisio
that he had taken "a shot or two" of liquor before
dinner with his boss that night. We do not believe that
this evidence is sufficient to show that Dionisio was so
heavily under the influence of liquor as to constitute
his driving a motor vehicle per se an act of reckless
imprudence. 8 There simply is not enough evidence to

Nonetheless, we agree with the Court of First Instance

and the Intermediate Appellate Court that the legal
and proximate cause of the accident and of Dionisio's
injuries was the wrongful or negligent manner in which
the dump truck was parked in other words, the
negligence of petitioner Carbonel. That there was a
reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and
respondent's injuries on the other hand, is quite clear.
Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and
foreseeable

consequence

of

the

truck

driver's

negligence.
The petitioners, however, urge that the truck driver's
negligence was merely a "passive and static condition"
and that private respondent Dionisio's negligence was
an "efficient intervening cause," and that consequently
Dionisio's negligence must be regarded as the legal and
proximate cause of the accident rather than the earlier
negligence of Carbonel. We note that the petitioners'
arguments are drawn from a reading of some of the
older cases in various jurisdictions in the United States
but we are unable to persuade ourselves that these
arguments have any validity for our jurisdiction. We
note, firstly, that even in the United States, the
distinctions between "cause" and "condition" which the
petitioners would have us adopt have already been
"almost entirely discredited." Professors Prosser and
Keeton make this quite clear: LibLex

Page 50 of 96
"Cause and condition. Many courts have sought to

view, Dionisio's negligence, although later in point of

distinguish between the active "cause" of the harm and

time than the truck driver's negligence and therefore

the existing "conditions" upon which that cause

closer to the accident, was not an efficient intervening

operated. If the defendant has created only a passive

or independent cause. What the petitioners describe as

static condition which made the damage possible, the

an "intervening cause" was no more than a foreseeable

defendant is said not to be liable. But so far as the fact

consequence of the risk created by the negligent

of causation is concerned, in the sense of necessary

manner in which the truck driver had parked the

antecedents which have played an important part in

dump truck. In other words, the petitioner truck driver

producing

to

owed a duty to private respondent Dionisio and others

the

distinguish

result,

between

it

is

active

quite
forces

impossible

passive

similarly situated not to impose upon them the very

situations, particularly since, as is invariably the case,

and

risk the truck driver had created. Dionisio's negligence

the latter are the result of other active forces which

was not of an independent and overpowering nature as

have gone before. The defendant who spills gasoline

to cut, as it were, the chain of causation in fact

about the premises creates a "condition," but the act

between the improper parking of the dump truck and

may be culpable because of the danger of fire. When a

the accident, nor to sever the juris vinculum of liability.

spark ignites the gasoline, the condition has done quite

It is helpful to quote once more from Prosser and

as much to bring about the fire as the spark; and since

Keeton: prLL

that is the very risk which the defendant has created,

the defendant will not escape responsibility. Even the
lapse

of

considerable

time

during

which

the

"condition" remains static will not necessarily affect

liability; one who digs a trench in the highway may still
be liable to another who falls into it a month afterward.
"Cause" and "condition" still find occasional mention in
the decisions; but the distinction is now almost entirely
discredited. So far as it has any validity at all, it must
refer to the type of case where the forces set in
operation by the defendant have come to rest in a
position of apparent safety, and some new force
intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is
important, but the nature of the risk and the character
of the intervening cause." 9

"Foreseeable Intervening Causes. If the intervening

cause is one which in ordinary human experience is
reasonably to be anticipated, or one which the
defendant

has

reason

particular

circumstances,

to

anticipate
the

under

defendant

may

the
be

negligent, among other reasons, because of failure to

guard against it; or the defendant may be negligent
only for that reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual and
customary wind arising later will spread it beyond the
defendant's own property,

and therefore to take

precautions to prevent that event. The person who

leaves the combustible or explosive material exposed in
a public place may foresee the risk of fire from some
independent source. . . . In all of these cases there is
an intervening cause combining with the defendant's

We believe, secondly, that the truck driver's negligence

conduct to produce the result, and in each case the

far from being a "passive and static condition" was

defendant's negligence consists in failure to protect the

rather an indispensable and efficient cause. The

plaintiff against that very risk.

collision between the dump truck and the private

respondent's car would in all probability not have
occurred had the dump truck not been parked askew
without any warning lights or reflector devices. The
improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this
risk, the truck driver must be held responsible. In our

Obviously the defendant cannot be relieved from

liability by the fact that the risk or a substantial and
important part of the risk, to which the defendant has
subjected the plaintiff has indeed come to pass.
Foreseeable intervening forces are within the scope of
the original risk, and hence of the defendant's
negligence. The courts are quite generally agreed that

Page 51 of 96
intervening causes which fall fairly in this category will

the common law was to mitigate the harshness of

not supersede the defendant's responsibility.

another common law doctrine or rule that of

Thus it has been held that a defendant will be required

to anticipate the usual weather of the vicinity,
including all ordinary forces of nature such as usual
wind or rain, or snow or frost or fog or even lightning;
that one who leaves an obstruction on the road or a
railroad track should foresee that a vehicle or a train
will run into it; . . . .

intervention of the foreseeable negligence of others. . . .

[T]he standard of reasonable conduct may require the
to

protect

the

plaintiff

against

`that

occasional negligence which is one of the ordinary

incidents

of

anticipated.'

human
Thus,

contributory negligence prevented any recovery at all

by a plaintiff who was also negligent, even if the
plaintiff's negligence was relatively minor as compared
with the wrongful act or omission of the defendant. 13
The common law notion of last clear chance permitted
courts to grant recovery to a plaintiff who had also
been negligent provided that the defendant had the last

The risk created by the defendant may include the

defendant

contributory negligence. 12 The common law rule of

life,

and

defendant

therefore
who

to

be

blocks

the

sidewalk and forces the plaintiff to walk in a street

where the plaintiff will be exposed to the risks of heavy
traffic becomes liable when the plaintiff is run down by
a car, even though the car is negligently driven; and
one who parks an automobile on the highway without
lights at night is not relieved of responsibility when
another negligently drives into it. ---" 10
We hold that private respondent Dionisio's negligence
was "only contributory," that the "immediate and
proximate cause" of the injury remained the truck
driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such
damages are subject to mitigation by the courts (Article

clear chance to avoid the casualty and failed to do so.

14 Accordingly, it is difficult to see what role, if any,
the common law last clear chance doctrine has to play
in a jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery
by the plaintiff, has itself been rejected, as it has been
in Article 2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear
chance" that may be extracted from its common law
matrix and utilized as a general rule in negligence
cases in a civil law jurisdiction like ours? We do not
believe so. Under Article 2179, the task of a court, in
technical terms, is to determine whose negligence
the plaintiff's or the defendant's was the legal or
proximate cause of the injury. That task is not simply
or even primarily an exercise in chronology or physics,
as the petitioners seem to imply by the use of terms
like "last" or "intervening" or "immediate." The relative
location in the continuum of time of the plaintiff's and
the defendant's negligent acts or omissions, is only one

2179, Civil Code of the Philippines). LexLib

of the relevant factors that may be taken into account.

Petitioners also ask us to apply what they refer to as

negligent act or omission of each party and the

the "last clear chance" doctrine. The theory here of

character and gravity of the risks created by such act

petitioners is that while the petitioner truck driver was

or omission for the rest of the community. The

negligent, private respondent Dionisio had the "last

petitioners urge that the truck driver (and therefore his

clear chance" of avoiding the accident and hence his

employer) should be absolved from responsibility for

injuries, and that Dionisio having failed to take that

his own prior negligence because the unfortunate

"last clear chance" must bear his own injuries alone.

plaintiff failed to act with that increased diligence

The last clear chance doctrine of the common law was

which had become necessary to avoid the peril

imported into our jurisdiction by Picart vs. Smith 11

precisely created by the truck driver's own wrongful act

but it is a matter for debate whether, or to what extent,

or omission. To accept this proposition is to come too

it has found its way into the Civil Code of the

close to wiping out the fundamental principle of law

Philippines. The historical function of that doctrine in

that

Of more fundamental importance are the nature of the

man

must

respond

for

the

foreseeable

Page 52 of 96
consequences of his own negligent act or omission. Our

to by 20% of such amount. Costs against the

law on quasi-delicts seeks to reduce the risks and

petitioners. cdphil

burdens of living in society and to allocate them among

the members of society. To accept the petitioners'
proposition must tend to weaken the very bonds of
society. cdll

SO ORDERED.
Yap, Narvasa, Cruz, Gancayco and Sarmiento, JJ .,
concur.

Petitioner Carbonel's proven negligence creates a

presumption of negligence on the part of his employer

Melencio-Herrera, J ., on official leave.

Phoenix 16 in supervising its employees properly and

adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not
able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver
to bring the dump truck to his home whenever there
was work to be done early the following morning, when
coupled with the failure to show any effort on the part

12.
THIRD DIVISION
[G.R. No. L-47379. May 16, 1988.]
NATIONAL POWER CORPORATION, petitioner, vs.

of Phoenix to supervise the manner in which the dump

HONORABLE

truck is parked when away from company premises, is

ENGINEERING CONSTRUCTION, INC., respondents.

an affirmative showing of culpa in vigilando on the part

COURT

OF

APPEALS

and

of Phoenix.

[G.R. No. L-47481. May 16, 1988.]

Turning to the award of damages and taking into

ENGINEERING CONSTRUCTION, INC., petitioner, vs.

account

the

comparative

negligence

of

private

respondent Dionisio on one hand and petitioners

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

COURT

OF

APPEALS

and

NATIONAL

POWER

CORPORATION, respondents.
Raymundo A. Armovit for private respondent in L47379.
The Solicitor General for petitioner.
SYLLABUS
1.

CIVIL LAW; OBLIGATIONS AND CONTRACTS;

LIABILITY FOR LOSS OR DAMAGE DUE TO FORCE

MAJEURE;

PARTY

HAVE

LIABLE

WHERE

HIS

NEGLIGENCE WAS THE PROXIMATE CAUSE OF

LOSS. It is clear from the appellate court's decision
that based on its findings of fact and that of the trial
court's, petitioner NPC was undoubtedly negligent
because it opened the spillway gates of the Angat Dam

court.

only at the height of typhoon "Welming" when it knew

WHEREFORE, the decision of the respondent appellate

gradually and earlier, as it was also undeniable that

court is modified by reducing the aggregate amount of

compensatory damages, loss of expected income and
moral damages private respondent Dionisio is entitled

very well that it was safer to have opened the same

NPC knew of the coming typhoon at least four days
before it actually struck. And even though the typhoon
was an act of God or what we may call force majeure,

Page 53 of 96
NPC cannot escape liability because its negligence was

the part of NPC and that neither can the latter's

the proximate cause of the loss and damage.

negligence be considered gross.

2.

DECISION

REMEDIAL LAW; EVIDENCE; FINDINGS OF

FACT OF THE COURT OF APPEALS GENERALLY NOT

DISTURBED ON APPEAL. The question of whether
or not there was negligence on the part of NPC is a
question of fact which properly falls within the
jurisdiction of the Court of Appeals and will not be
disturbed by this Court unless the same is clearly
unfounded. (Tolentino v. Court of Appeals, [150 SCRA
26, 36])
3.

GUTIERREZ, JR., J p:
These consolidated petitions seek to set aside the
decision of the respondent Court of Appeals which
adjudged the National Power Corporation liable for
damages against Engineering Construction, Inc. The
appellate court, however, reduced the amount of
damages awarded by the trial court. Hence, both

CIVIL

LAW;

CONSEQUENTIAL

DAMAGE;

REDUCED IN CASE AT BAR. While there was no

categorical statement or admission on the part of ECI
that it bought a new crane to replace the damaged one,
a sales contract was presented to the effect that the
new crane would be delivered to it by Asian Enterprises
within 60 days from the opening of the letter of credit
at the cost of P106,336.75. The offer was made by
Asian Enterprises a few days after the flood. As
compared to the amount of P106,336.75 for a brand
new crane and paying the alleged amount of P4,000.00

parties filed their respective petitions: the National

Power

Corporation

(NPC)

in

G.R.

No.

47379,

questioning the decision of the Court of Appeals for

holding it liable for damages and the Engineering
Construction, Inc. (ECI) in G.R. No. 47481, questioning
the same decision for reducing the consequential
damages and attorney's fees and for eliminating the
exemplary damages.
The facts are succinctly summarized by the respondent
Court of Appeals, as follows:

a day as rental for the use of a temporary crane, which

"On

use petitioner ECI alleged to have lasted for a period of

Construction, Inc., being a successful bidder, executed

one year, thus, totalling P120,000.00, plus the fact

a contract in Manila with the National Waterworks and

that there was already a sales contract between it and

Sewerage Authority (NAWASA), whereby the former

Asian Enterprises, there is no reason why ECI should

undertook to furnish all tools, labor, equipment, and

opt to rent a temporary crane for a period of one year.

materials (not furnished by Owner), and to construct

The appellate court also found that the damaged crane

the proposed 2nd Ipo-Bicti Tunnel, Intake and Outlet

was subsequently repaired and reactivated and the

Structures,

cost of repair was P77,000.00. Therefore, it included

Appurtenant Features, at Norzagaray, Bulacan, and to

the said amount in the award of compensatory

complete said works within eight hundred (800)

damages, but not the value of the new crane. We do

calendar days from the date the Contractor receives the

not find anything erroneous in the decision of the

formal notice to proceed (Exh. A).

appellate court that the consequential damages should

represent only the service of the temporary crane for
one month. A contrary ruling would result in the
unjust enrichment of ECI.
4.

ID.;

PROPER

EXEMPLARY
IN

ABSENCE

August

4,

and

1964,

plaintiff

Appurtenant

Engineering

Structures,

and

"The project involved two (2) major phases: the first

phase comprising the tunnel work covering a distance
of seven (7) kilometers, passing through the mountain,
from the Ipo river, a part of Norzagaray, Bulacan, where

DAMAGES;
OF

BAD

AWARD NOT
FAITH

OR

NEGLIGENCE. As to the question of exemplary

damages, we sustain the appellate court in eliminating
the same since it found that there was no bad faith on

the

Ipo

Dam

of

the

defendant

National

Power

Corporation is located, to Bicti; the other phase

consisting of the outworks at both ends of the tunnel.

Page 54 of 96
"By September 1967, the plaintiff corporation already

early as November 3, 1967, when the water in the

had completed the first major phase of the work,

reservoir was still low. At that time, the gates of the

namely, the tunnel excavation work. Some portions of

dam could have been opened in a regulated manner.

the outworks at the Bicti site were still under

Let it be stressed that the appellant knew of the

construction. As soon as the plaintiff corporation had

coming of the typhoon four days before it actually hit

finished the tunnel excavation work at the Bicti site, all

the project area." (p. 53, L-47379 Rollo)

the equipment no longer needed there were transferred

to the Ipo site where some projects were yet to be
completed.

"We come now to the award of damages. The appellee

"The record shows that on November 4, 1967, typhoon

'Welming'

As to the award of damages, the appellate court held:

hit

Central

Luzon,

passing

through

defendant's Angat Hydro-electric Project and Dam at

Ipo, Norzagaray, Bulacan. Strong winds struck the
project area, and heavy rains intermittently fell. Due to
the heavy downpour, the water in the reservoir of the
Angat Dam was rising perilously at the rate of sixty
(60) centimeters per hour. To prevent an overflow of
water from the dam, since the water level had reached
the danger height of 212 meters above sea level, the
defendant corporation caused the opening of the
spillway gates." (pp. 45-46, L-47379 Rollo)

submitted a list of estimated losses and damages to the

tunnel project (Ipo side) caused by the instant flooding
of the Angat River (Exh. J-1). The damages were
itemized in four categories, to wit: Camp Facilities
P55,700.00;
P375,659.51;

Equipment,
Materials

Parts

and

Plant

P107,175.80;

and

Permanent Structures and accessories P137,250.00,

with an aggregate total amount of P675,785.31. The
list is supported by several vouchers which were all
submitted as Exhibits K to M-38-a, N to O, P to U-2
and V to X-60-a (Vide: Folders Nos. 1 to 4). The
appellant did not submit proofs to traverse the
aforementioned documentary evidence. We hold that

The appellate court sustained the findings of the trial

the lower court did not commit any error in awarding

court that the evidence preponderantly established the

P675,785.31 as actual or compensatory damages."

fact that due to the negligent manner with which the

spillway gates of the Angat Dam were opened, an
extraordinary large volume of water rushed out of the
gates, and hit the installations and construction works
of ECI at the Ipo site with terrific impact, as a result of
which the latter's stockpile of materials and supplies,
camp

facilities

and

permanent

structures

and

accessories were either washed away, lost or destroyed.

The appellate court further found that:

that the appellant exercised extraordinary care in the

opening of the spillway gates of the Angat Dam.
Maintainers of the dam knew very well that it was far
more safe to open them gradually. But the spillway
gates were opened only when typhoon Welming was
already at its height, in a vain effort to race against
time and prevent the overflow of water from the dam as
'was

rising

dangerously

at the

as consequential damages. This amount is broken

down as follows: P213,200.00 as and for the rentals of
a crane to temporarily replace the one 'destroyed
beyond repair,' and P120,000.00 as one month bonus
which the appellee failed to realize in accordance with
the contract which the appellee had with NAWASA.
Said rental of the crane allegedly covered the period of
one year at the rate of P40.00 an hour for 16 hours a

"It cannot be pretended that there was no negligence or

it

"However, We cannot sustain the award of P333,200.00

rate of

sixty

centimeters per hour.' Action could have been taken as

day. The evidence, however, shows that the appellee

bought a crane also a crawler type, on November 10,
1967, six (6) days after the incident in question (Exh.
N). And according to the lower court, which finding was
never assailed, the appellee resumed its normal
construction work on the Ipo-Bicti Project after a
stoppage of only one month. There is no evidence when
the appellee received the crane from the seller, Asian
Enterprise Limited. But there was an agreement that
the shipment of the goods would be effected within 60
days from the opening of the letter of credit (Exh. N). It

Page 55 of 96
appearing that the contract of sale was consummated,

Crawler-type crane and therefore, it only can claim

We must conclude or at least assume that the crane

rentals for the temporary use of the leased crane for a

was delivered to the appellee within 60 days as

period of one month; and that the award of P4,000.00

stipulated. The appellee then could have availed of the

a day or P120,000.00 a month bonus is justified since

services of another crane for a period of only one

the period limitation on ECI's contract with NAWASA

month (after a work stoppage of one month) at the rate

had dual effects, ie., bonus for earlier completion and

of P40.00 an hour for 16 hours a day or a total of

liquidated damages for delayed performance; and in

P19,200.00 as rental.

either case at the rate of P4,000.00 daily. Thus, since

"But the value of the new crane cannot be included as

part of actual damages because the old was reactivated
after it was repaired. The cost of the repair was
P77,000.00 as shown in item No. 1 under the
Equipment, Parts and Plants category (Exh. J-1),
which amount of repair was already included in the
actual or compensatory damages." (pp. 54-56, L47379, Rollo)

NPC's negligence compelled work stoppage for a period

of one month, the said award of P120,000.00 is
justified. ECI further assails the reduction of attorney's
fees and the total elimination of exemplary damages.
Both petitions are without merit.
It is clear from the appellate court's decision that
based on its findings of fact and that of the trial
court's, petitioner NPC was undoubtedly negligent

The appellate court likewise rejected the award of

because it opened the spillway gates of the Angat Dam

unrealized bonus from NAWASA in the amount of

only at the height of typhoon "Welming" when it knew

P120,000.00 (computed at P4,000.00 a day in case

very well that it was safer to have opened the same

construction is finished before the specified time, i.e.,

gradually and earlier, as it was also undeniable that

within 800 calendar days), considering that the

NPC knew of the coming typhoon at least four days

incident occurred after more than three (3) years or

before it actually struck. And even though the typhoon

one thousand one hundred seventy (1,170) days. The

was an act of God or what we may call force majeure,

court also eliminated the award of exemplary damages

NPC cannot escape liability because its negligence was

as there was no gross negligence on the part of NPC

the proximate cause of the loss and damage. As we

and reduced the amount of attorney's fees from

have ruled in Juan F. Nakpil & Sons v. Court of

P50,000.00 to P30,000.00. prLL

Appeals, (144 SCRA 596, 606-607):

In these consolidated petitions, NPC assails the

"Thus, if upon the happening of a fortuitous event or

appellate court's decision as being erroneous on the

an act of God, there concurs a corresponding fraud,

ground that the destruction and loss of the ECI's

negligence, delay or violation or contravention in any

equipment and facilities were due to force majeure. It

manner of the tenor of the obligation as provided for in

argues that the rapid rise of the water level in the

Article 1170 of the Civil Code, which results in loss or

reservoir of its Angat Dam due to heavy rains brought

damage, the obligor cannot escape liability.

about by the typhoon was an extraordinary occurrence

that could not have been foreseen, and thus, the
subsequent release of water through the spillway gates
and its resultant effect, if any, on ECI's equipment and
facilities may rightly be attributed to force majeure.

"The principle embodied in the act of God doctrine

strictly requires that the act must be one occasioned
exclusively by the violence of nature and human
agencies are to be excluded from creating or entering
into the cause of the mischief. When the effect, the

On the other hand, ECI assails the reduction of the

cause of which is to be considered, is found to be in

consequential

to

part the result of the participation of man, whether it

P19,000.00 on the grounds that the appellate court

be from active intervention or neglect, or failure to act,

had no basis in concluding that ECI acquired a new

the whole occurrence is thereby humanized, as it was,

damages

from

P333,200.00

Page 56 of 96
and removed from the rules applicable to the acts of

by

God. (1 Corpus Juris, pp. 1174-1175).

statement or admission on the part of ECI that it

"Thus, it has been held that when the negligence of a

person concurs with an act of God in producing a loss,
such person is not exempt from liability by showing
that the immediate cause of the damage was the act of
God. To be exempt from liability for loss because of an
act of God, he must be free from any previous
negligence or misconduct by which the loss or damage
may have been occasioned. (Fish & Elective Co. v. Phil.
Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379;
Limpangco & Sons v. Yangco Steamship Co., 34 Phil.
594, 604; Lasam v. Smith, 45 Phil. 657)."
Furthermore, the question of whether or not there was
negligence on the part of NPC is a question of fact
which properly falls within the jurisdiction of the Court
of Appeals and will not be disturbed by this Court
unless the same is clearly unfounded. Thus, in
Tolentino v. Court of Appeals, (150 SCRA 26, 36) we

the

records,

while

there

was

no

categorical

bought a new crane to replace the damaged one, a

sales contract was presented to the effect that the new
crane would be delivered to it by Asian Enterprises
within 60 days from the opening of the letter of credit
at the cost of P106,336.75. The offer was made by
Asian Enterprises a few days after the flood. As
compared to the amount of P106,336.75 for a brand
new crane and paying the alleged amount of P4,000.00
a day as rental for the use of a temporary crane, which
use petitioner ECI alleged to have lasted for a period of
one year, thus, totalling P120,000.00, plus the fact
that there was already a sales contract between it and
Asian Enterprises, there is no reason why ECI should
opt to rent a temporary crane for a period of one year.
The appellate court also found that the damaged crane
was subsequently repaired and reactivated and the
cost of repair was P77,000.00. Therefore, it included
the said amount in the award of compensatory

ruled: cdll

damages, but not the value of the new crane. We do

"Moreover, the findings of fact of the Court of Appeals

appellate court that the consequential damages should

are generally final and conclusive upon the Supreme

represent only the service of the temporary crane for

Court (Leonardo v. Court of Appeals, 120 SCRA 890

one month. A contrary ruling would result in the

[1983]. In fact it is settled that the Supreme Court is

unjust enrichment of ECI. prcd

not supposed to weigh evidence but only to determine

its substantiality (Nuez v. Sandiganbayan, 100 SCRA
433 [1982] and will generally not disturb said findings
of fact when supported by substantial evidence (Aytona
v. Court of Appeals, 113 SCRA 575 [1985]; Collector of
Customs of Manila v. Intermediate Appellate Court,
137 SCRA 3 [1985]). On the other hand substantial
evidence is defined as such relevant evidence as a
reasonable mind might accept as adequate to support
a conclusion (Philippine Metal Products, Inc. v. Court
of Industrial Relations, 90 SCRA 135 [1979]; Police
Commission v. Lood, 127 SCRA 757 [1984]; Canete v.
WCC, 136 SCRA 302 [1985])."
Therefore, the respondent Court of Appeals did not err

not find anything erroneous in the decision of the

The P120,000.00 bonus was also properly eliminated

as the same was granted by the trial court on the
premise that it represented ECI's lost opportunity "to
earn the one month bonus from NAWASA . . ." As
stated earlier, the loss or damage to ECI's equipment
and

facilities

deadline

to

occurred
finish

the

long

after

the

construction.

stipulated
No

bonus,

therefore, could have been possibly earned by ECI at

that point in time. The supposed liquidated damages
for failure to finish the project within the stipulated
period or the opposite of the claim for bonus is not
clearly presented in the records of these petitions. It is
not shown that NAWASA imposed them.

in holding the NPC liable for damages.

As to the question of exemplary damages, we sustain

Likewise, it did not err in reducing the consequential

found that there was no bad faith on the part of NPC

damages from P333,200.00 to P19,000.00. As shown

and that neither can the latter's negligence be

the appellate court in eliminating the same since it

Page 57 of 96
considered

gross.

In

Dee

Hua

Liong

Electrical

indication, the proximate cause of the accident was the

Equipment Corp. v. Reyes, (145 SCRA 713, 719) we

negligence

ruled:

visibility, hastily executed a left turn (towards the Bislig

"Neither may private respondent recover exemplary

damages

since

compensatory

he

is

not

damages,

entitled

and

again

to

moral

because

or
the

petitioner is not shown to have acted in a wanton,

fraudulent, reckless or oppressive manner (Art. 2234,
Civil Code; Yutuk v. Manila Electric Co., 2 SCRA 377;
Francisco v. Government Service Insurance System, 7
SCRA 577; Gutierrez v. Villegas, 8 SCRA 527; Air
France v. Carrascoso, 18 SCRA 155; Pan Pacific (Phil.)
v. Phil. Advertising Corp., 23 SCRA 977; Marchan v.
Mendoza, 24 SCRA 888)."

of

Tano

who,

despite

extremely

poor

airport road entrance) without first waiting for the dust

to settle. It was this negligent act of Tano, which had
placed his vehicle (LBC van) directly on the path of the
motorcycle coming from the opposite direction, that
almost instantaneously caused the collision to occur.
Simple prudence required him not to attempt to cross
the other lane until after it would have been safe from
and clear of any oncoming vehicle. Petitioners poorly
invoke the doctrine of "last clear chance" (also referred
to, at times, as "supervening negligence" or as
"discovered peril"). The doctrine, in essence, is to the
effect that where both parties are negligent, but the

We also affirm the reduction of attorney's fees from

P50,000.00 to P30,000.00. There are no compelling
reasons why we should set aside the appellate court's
finding that the latter amount suffices for the services

negligent act of one is appreciably later in time than

that of the other, or when it is impossible to determine
whose fault or negligence should be attributed to the
incident, the one who had the last clear opportunity to

rendered by ECI's counsel.

avoid the impending harm and failed to do so is

WHEREFORE, the petitions in G.R. No. 47379 and

vs. Smith, 37 Phil. 809). Stated differently, the rule

G.R. No. 47481 are both DISMISSED for LACK OF

would also mean that an antecedent negligence of a

MERIT. The decision appealed from is AFFIRMED.

person does not preclude the recovery of damages for

chargeable with the consequences thereof (see Picart

the supervening negligence of, or bar a defense against

SO ORDERED.

liability sought by, another if the latter, who had the

Fernan, Feliciano, Bidin and Cortes, JJ., concur.

last fair chance, could have avoided the impending

13.

Express, Inc. vs. Baesa, 179 SCRA 384; Glan People's

harm by the exercise of due diligence (Pantranco North

Lumber and Hardware vs. Intermediate Appellate

THIRD DIVISION

Court, 173 SCRA 464). In the case at bench, the victim

[G.R. No. 101683. February 23, 1995.]

was traveling along the land where he was rightly

LBC AIR CARGO, INC., FERNANDO M. YU and

No appreciable time had elapsed, from the moment

JAIME TANO, JR., petitioners, vs. HON. COURT OF

Tano swerved to his left to the actual impact, that

supposed to be. The incident occurred in an instant.

APPEALS, Fourth Division, SHERWIN MONTEROLA

y

OYON-OYON,

GRONDIANO

represented
MONTEROLA,

by

PATROCENIA

and

PATROCENIA

GRONDIANO y MONTEROLA, respondents.

COMMERCIAL

to avoid the collision. It is true, however, that the

deceased was not all that free from negligence in
evidently speeding too closely behind the vehicle he
was following. We, therefore, agree with the appellate
court that there indeed was contributory negligence on

SYLLABUS
1.

could have afforded the victim a last clear opportunity

LAW;

TRANSPORTATION;

COLLISION; DOCTRINE OF "LAST CLEAR CHANCE";

WHEN APPLICABLE; CASE AT BAR. For every

the victim's part that could warrant a mitigation of

petitioners' liability for damages.
DECISION

Page 58 of 96
VITUG, J p:

Private respondent appealed the dismissal of the civil

In this petition for review, the application of the

doctrines of "proximate cause" and "last clear chance"

case to the Court of Appeals. On 18 July 1991, the

appellate court reversed the court a quo. It held:

is, once again, being put to test. The petition questions

"WHEREFORE,

the decision of the Court of Appeals dated 18 July

REVERSED, and another one is hereby rendered

1991, which has reversed that of the trial court.

ordering the defendants Jaime Tano and LBC Air

cdphil

Cargo, Inc. to jointly and severally pay the plaintiff

The case arose from a vehicular collision which

occurred at about 11:30 in the morning of 15
November 1987. Rogelio Monterola, a licensed driver,
was traveling on board his Suzuki motorcycle towards
Mangagoy on the right lane along a dusty national road

Patrocinia

board were passengers Fernando Yu, Manager of LBC

Air Cargo, and his son who was seated beside Tano.
When Tano was approaching the vicinity of the airport
road entrance on his left, he saw two vehicles racing
against each other from the opposite direction. Tano
stopped his vehicle and waited for the two racing

"1.

to settle, Tano started to make a sharp left turn

towards the airport road. When he was about to reach
the center of the right lane, the motorcycle driven by
Monterola suddenly emerged from the dust and
smashed head-on against the right side of the LBC
van. Monterola died from the severe injuries he
sustained. cdasia
A

criminal

case

the

following

the

from

is

following

Indemnity for the death

of Rogelio Monterola P50,000.00

"2.

For Moral damages

20,000.00

"To PATROCINIA GRONDIANO Y MONTEROLA:

"3.

Actual damages

"4.

Hospitals & Burial Expenses 15,000.00

"5.

Attorneys Fees and expenses

vehicles to pass by. The stirred cloud of dust made

visibility extremely bad. Instead of waiting for the dust

Monterola

appealed

"TO SHERWIN MONTEROLA:

cargo van of the LBC Air Cargo Incorporated, driven by

opposite direction on its way to the Bislig Airport. On

judgment

amounts:

in Bislig, Surigao del Sur. At about the same time, a

defendant Jaime Tano, Jr., was coming from the

the

of Litigation

P7,361.00

10,000.00

"Plus the costs.

"Actual

payment

of

the

aforementioned

amounts

should, however, be reduced by twenty (20%) per cent."

1
In the instant petition for review, petitioners contend
that

for

"homicide

thru

reckless

imprudence" was filed against Tano. A civil suit was

likewise instituted by the heirs of deceased Monterola
against Tano, along with Fernando Yu and LBC Air
Cargo Incorporated, for the recovery of damages. The
two cases were tried jointly by the Regional Trial Court,

"1.

The Court of Appeals erred in finding that

Jaime Tano, Jr. was negligent in the driving of his

vehicle and in failing to give a signal to approaching
vehicles of his intention to make a left turn.
"2.

The Court of Appeals erred in not finding that

Branch 29, of Surigao del Sur. cdasia

the proximate cause of the accident was the victim's

On 29 July 1990, the trial court dismissed both cases

speed and thus hitting the petitioner's cargo van." 2

on the ground that the proximate cause of the

"accident" was the negligence of deceased Rogelio
Monterola.

negligence in the driving of his motorcycle in a very fast

The issues raised are thus essentially factual. The

intrinsic merit of, as well as cogency in, the detailed

Page 59 of 96
analyses made by the Court of Appeals in arriving at

Transportation and Traffic Code, the driver of any

its findings is at once apparent. Said the appellate

vehicle upon a highway, before starting, stopping or

court:

turning from a direct line, is called upon to first see

"That visibility was poor when Jaime Tano made a left

turn was admitted by the latter.
"Q

that such movement can be made in safety, and

whenever

the

operation

of

any

other

vehicle

approaching may be affected by such movement, shall

When these two vehicles passed by your parked

vehicle, as you said, there were clouds of dust, did I get

give a signal plainly visible to the driver of such other

vehicles of the intention to make such movement (Sec.

you right?

44, R.A. 4136, as amended). This means that before a

"A

Yes sir, the road was dusty.

the driver must first see to it that there are no

"Q

So much so that you could no longer see the

driver turns from a direct line, in this case to the left,

vehicles from the opposite direction following these

vehicles? cdasia
"A

approaching vehicles and, if there are, to make the

turn only if it can give a signal that is plainly visible to
the driver of such other vehicle. Tano did neither in
this case, for he recklessly made a left turn even as

It is not clear, sir, so I even turned on my left

visibility was still very poor, and thus failed to see the

signal and the headlight.

approaching motorcycle and warn the latter of his

"Q

negligence.

intention to make a left turn. This is plain and simple

What do you mean by it was not clear, you

could not see the incoming vehicles?

"In thus making the left turn, he placed his vehicle

"A

I could not see because of the cloud of dust.

"Q

And it was at this juncture, when you were to

follow your theory, when you started your LBC van

again and swerved to the left leading to the Bislig
airport?
"A

the dust to clear a little before I drove.

"Q

xxx

the risk or the condition of danger that set into

operation the event that led to the smashedup and

Court that you could only clearly see big vehicles . . .

but not small vehicles like a motorcycle?

vehicles like a motorcycle.

Like the motorcycle of Rogelio Monterola?

"A

Yes, sir. I could not see clearly. (Tano, tsn, April

"Tano should not have made a left turn under the

Under

movement can be made in safety, and that whenever

any other vehicle approaching may be affected by such

the

driver of such other vehicle of the intention to make

such movement.

visibility as evidenced by the magnitude of the damage

18, 1989, pp. 26-30) (p. 15, Appellant's brief).

him.

that before doing so, he should first see to it that such

"That Rogelio Monterola was running fast despite poor

"Q

by

observed the directive of the Land Transportation Code

movement, should give a signal plainly visible to the

I could see clearly big vehicles but not small

admitted

"Rogelio Monterola's motorcycle would not have hit the

turned left when visibility was still poor, and instead

xxx

In other words when you said that it was

conditions

Tano's vehicle. It was Tano's negligence that created

cargo van had Tano, in operating it, not recklessly

slightly clear, you would like to tell the Honorable

"A

of Tano's intention to make a left turn, smashed at

untimely death of Rogelio Monterola.

I did not enter immediately the airport, I waited

"xxx

directly at the path of the motorcycle which, unaware

Land

to the vehicles is no defense. His negligence would at

most be contributory (Article 2179, N.C.C.). Having
negligently created the condition of danger, defendants
may not avoid liability by pointing to the negligence of
the former. cdasia

Page 60 of 96
"xxx

xxx

xxx

twenty

"Tano's proven negligence created a presumption of

per

cent

(Phoenix

Construction

Inc.

v.

Intermediate Appellate Court, supra.)." 3

negligence on the part of his employer, the LBC Air

For every indication, the proximate cause of the

Cargo

employees

accident was the negligence of Tano who, despite

properly and adequately (Phoenix Construction, Inc. vs.

extremely poor visibility, hastily executed a left turn

Intermediate Appellate Court, supra), which may only

(towards the Bislig airport road entrance) without first

be destroyed by proof of due diligence in the selection

waiting for the dust to settle. It was this negligent act

and supervision of his employees to prevent the

of Tano, which had placed his vehicle (LBC van)

damage (Article 2180, N.C.C.). No such defense was

directly on the path of the motorcycle coming from the

interposed by defendants in their answer.

opposite direction, that almost instantaneously caused

Corporation,

in

supervising

its

"We, however, fail to see Fernando Yu's liability as

Manager of LBC-Mangagoy Branch Office, there being
no employer-employee relationship between him and
Jaime Tano who is a driver of the LBC Air Cargo Inc. It

the collision to occur. Simple prudence required him

not to attempt to cross the other lane until after it
would have been safe from and clear of any oncoming
vehicle.

was held in Philippine Rabbit Bus Lines Inc., et al. vs.

Petitioners poorly invoke the doctrine of "last clear

Phil. American Forwarders, Inc., 63 SCRA 231, that

chance" (also referred to, at times, as "supervening

the term 'Manager' in Article 2180 is used in the sense

negligence" or as "discovered peril"). The doctrine, in

of 'employer.' Hence, no tortuous or quasi-delictual

essence, is to the effect that where both parties are

liability can be fastened on Fernando Yu as branch

negligent, but the negligent act of one is appreciably

manager of LBC Air Cargo Inc.

later in time than that of the other, or when it is

"Now for the amount of damages. Aside from the

indemnity for death which People v. Sazon, 189 SCRA
700), the evidence disclose that as a result of the
accident, Rogelio Monterola's motorcycle was damaged,
the repair cost of which amounted to P7,361.00 (Exh.
E-1), for the hospitalization, wake and burial expenses,
plaintiff

spent

P15,000.00.

There

is

likewise

no

question that by reason of Rogelio Monterola's untimely

death, his only child 14 years old Sherwin Monterola,
suffered

mental

anguish,

fright,

serious

anxiety,

wounded feelings and moral shock that entitles him to

moral damages which we hereby fix at P20,000.00.
Because of defendants' refusal to indemnify the
plaintiff for his father's death, the latter was compelled

impossible to determine whose fault or negligence

should be attributed to the incident, the one who had
the last clear opportunity to avoid the impeding harm
and failed to do so is chargeable with the consequences
thereof (see Picart vs. Smith, 37 Phil. 809). Stated
differently,

the

rule

would

also

mean

that

an

antecedent negligence of a person does not preclude

the recovery of damages for the supervening negligence
of, or bar a defense against liability sought by, another
if the latter, who had the last fair chance, could have
avoided the impending harm by the exercise of due
diligence (Pantranco North Express, Inc. vs. Baesa, 179
SCRA 384; Glan People's Lumber and Hardware vs.
Intermediate Appellate Court, 173 SCRA 464).cdasia

to litigate and engage the services of counsel. He is

In the case at bench, the victim was traveling along the

therefore

entitled

P10,000.00

for

to

an

attorney's

additional
fees

and

amount

of

lane where he was rightly supposed to be. The incident

expenses

of

occurred in an instant. No appreciable time had

litigation. cdasia
"Considering, however, the contributory negligence of
Rogelio Monterola in driving at a fast clip despite the

elapsed, from the moment Tano swerved to his left to

the actual impact, that could have afforded the victim
a last clear opportunity to avoid the collision. cdrep

fact that the road was dusty, we reduce the aggregate

It is true, however, that the deceased was not all that

amount of damages to which the plaintiff is entitled by

free from negligence in evidently speeding too closely

Page 61 of 96
behind the vehicle he was following. We, therefore,

to the hearsay rule. The facts stated therein were not

agree with the appellate court that there indeed was

acquired by the reporting officers through official

contributory negligence on the victim's part that could

information, not having been given by the informants

warrant

pursuant to any duty to do so.

mitigation

of

petitioners'

liability

for

damages.

3.

ID.; ID.; REPORT SUBMITTED BY A POLICE

WHEREFORE, the appealed decision is AFFIRMED.

OFFICER IN THE PERFORMANCE OF HIS DUTIES.

Costs against petitioners.

The report submitted by a police officer in the

performance of his duties on the basis of his own

SO ORDERED.

personal observation

Feliciano, Romero, Melo and Francisco, JJ ., concur.

14.

reported,

may

rule.
ID.; PRESUMPTION OF NEGLIGENCE UNDER

THE DOCTRINE OF Res Ipsa Loquitur. Where the

thing which caused the injury complained of is shown

[G.R. No. L-12986. March 31, 1966.]

to be under the management defendant or his servants

THE SPOUSES BERNABE AFRICA and SOLEDAD C.

AFRICA

facts

properly be considered as an exception to the hearsay

4.

EN BANC

of the

and

the

HEIRS

OF

DOMINGA

ONG,

petitioners-appellants, vs. CALTEX (PHIL.) INC.,

MATEO BOQUIREN and THE COURT OF APPEALS,
respondents-appellees.

and the accident is such as in the ordinary course of

things does not happen if those who have its
management or control use proper care, it affords
reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care.
(45 C. J. 768, p. 1193.)

Ross, Selph, Carrascoso & Janda for the respondents.

5.

ID.; ID.; APPLICATION OF PRINCIPLE TO THE

CASE AT BAR. The gasoline station, with all its

Bernabe Africa, etc. for the petitioners.

appliances, equipment and employees, was under the

SYLLABUS

control of appellees. A fire occurred therein and spread

1.

who knew or could have known how the fire started

EVIDENCE; ENTRIES IN OFFICIAL RECORDS;

REQUISITES FOR ADMISSIBILITY. There are three

requisites for admissibility of evidence under Sec. 35,
Rule 123, Rules of Court: (a) that the entry was made
by a public officer, or by another person, specially
enjoined by law to do so; (b) that it was made by the
public officer in the performance of his duties, or by
such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer
or other person had sufficient knowledge of the facts
by him stated, which must have been acquired by him
personally or through official information (Moran,
Comments on the Rules of Court, Vol., 3, p. 393).
2.

ID.;

HEARSAY

RULE;

REPORTS

NOT

CONSIDERED EXCEPTION TO HEARSAY RULE.

The reports in question do not constitute an exception

to and burned the neighboring houses. The persons

were appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and
reasonable

inference

that

the

incident

happened

because of want of care.

6.

TORTS;

INTERVENTION

OF

UNFORESEEN

AND UNEXPECTED CAUSE. The intervention of an

unforeseen and unexpected cause, is not sufficient to
relieve a wrongdoer from consequences of negligence, if
such negligence directly and proximately cooperates
with the independent cause in the resulting injury.
(MacAfee et al., vs. Travers Gas Corp., et al., 153 S. W.
2nd 442.)
7.

DAMAGES;

LIABILITY

OF

OWNER

OF

GASOLINE STATION; CASE AT BAR. A fire broke out

Page 62 of 96
at the Caltex service station. It is started while gasoline

part of both of them was attributed as the cause of the

was being hosed from a tank into the underground

fire.

storage. The fire spread to and burned several

neighboring

houses

owned

by

appellants.

Issue:

Whether Caltex should be held liable for the damages

caused to appellants. Held: The question depends on
whether the operator of the gasoline station was an
independent contractor or an agent of Caltex. Under
the license agreement the operator would pay Caltex
the purely nominal sum of P1.00 for the use of the
premises and all equipment therein. The operator
could sell only Caltex products. Maintenance of the
station and its equipment was subject to the approval,
in other words control, of Caltex. The operator could
not assign or transfer his rights as license without the
consent of Caltex. Termination of the contract was a
right granted only to Caltex but not to the operator.
These provisions of the contract show that the operator
was

virtually

an

employee

of

Caltex,

not

an

independent contractor. Hence, Caltex should be liable

for damages caused to appellants.

failed

to

prove

negligence

and

that

respondents had exercised due care in the premises

and with respect to the supervision of their employees.
The first question before Us refers to the admissibility
of certain reports on the fire prepared by the Manila
Police and Fire Departments and by a certain Captain
Tinio of the Armed Forces of the Philippines. Portions
of the first two reports are as follows:
1.

Police Department Report:

"Investigation disclosed that at about 4:00 P.M. March

18, 1948, while Leandro Flores was transferring
gasoline from a tank truck, plate No. T-5292 into
underground tank of the Caltex Gasoline Station
located at the corner of Rizal Avenue and Antipolo
Street, this City, an unknown Filipino lighted a
main valve of the said underground tank. Due to the
gasoline fumes, fire suddenly blazed. Quick action of

MAKALINTAL, J p:

Leandro

This case is before us on a petition for review of the

decision of the Court of Appeals, which affirmed that of
the Court of First Instance of Manila dismissing
second

petitioners

cigarette and threw the burning match stick near the

DECISION

petitioners'

The trial court and the Court of Appeals found that

amended

complaint

against

respondents.
The action is for damages under Articles 1902 and
1903 of the old Civil Code. It appears that in the
afternoon of March 18, 1948 a fire broke out at the
Caltex service station at the corner of Antipolo street
and Rizal Avenue, Manila. It started while gasoline was
being hosed from a tank truck into the underground
storage, right at the opening of the receiving tank
where the nozzle of the hose was inserted. The fire
spread to and burned several neighboring houses,
including the personal properties and effects inside
them. Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren,

Flores

in

pulling

of

the

gasoline

hose

connecting the truck with the underground tank

prevented a terrific explosion. However, the flames
scattered due to the hose from which the gasoline was
spouting. It burned the truck and the following
accessories and residences."
2.

The Fire Department Report:

In connection with their allegation that the premises

was (sic) subleased for the installation of a coca-cola
and cigarette stand, the complainants furnished this
Office a copy of a photograph taken during the fire and
which is submitted herewith. It appears in this picture
that there are in the premises a coca-cola cooler and a
rack which according to information gathered in the
neighborhood
installed

contained

between

the

cigarettes
gasoline

and

pumps

matches,
and

the

underground tanks."

the first as alleged owner of the station and the second

The report of Captain Tinio reproduced information

as its agent in charge of operation. Negligence on the

given by a certain Benito Morales regarding the history

Page 63 of 96
of the gasoline station and what the chief of the fire

evidence on their contents, fall within the scope of

department had told him on the same subject.

section 35, Rule 123 which provides that "entries in

The foregoing reports were ruled out as "double

hearsay"

by

the

Court

of

Appeals

and

hence

inadmissible. This ruling is now assigned as error. It is

contended: first, that said reports were admitted by the
trial

court

without

objection

on

the

part

official records made in the performance of his duty by

a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are
prima facie evidence of the facts therein stated."

of

There are three requisites for admissibility under the

respondents; secondly, that with respect to the police

rule just mentioned: (a) that the entry was made by a

report (Exhibit V-Africa) which appears signed by a

public officer, or by another person specially enjoined

Detective Zapanta allegedly "for Salvador Capacillo,"

by law to do so; (b) that it was made by the public

the latter was presented as witness but respondents

officer in the performance of his duties, or by such

waived their right to cross-examine him although they

other person in the performance of a duty specially

had the opportunity to do so; and thirdly, that in any

enjoined by law; and (c) that the public officer or other

event the said reports are admissible as an exception to

person had sufficient knowledge of the facts by him

the hearsay rule under section 35 of Rule 123, now

stated, which must have been acquired by him

Rule 130.

personally or through official information. (Moran,

The first contention is not borne out by the record. The

Comments on the Rules of Court, Vol. 3 [1957] p. 383.)

transcript of the hearing of September 17, 1953 (pp.

Of the three requisites just stated, only the last need

167-170) shows that the reports in question, when

be considered here. Obviously the material facts recited

offered as evidence, were objected to by counsel for

in the reports as to the cause and circumstances of the

each of respondents on the ground that they were

fire were not within the personal knowledge of the

hearsay and that they were "irrelevant, immaterial and

officers

impertinent." Indeed, in the court's resolution only

knowledge of such facts, however, acquired by them

Exhibits J, K, K-5 and X-6 were admitted without

through official information? As to some facts the

objection; the admission of the others, including the

sources thereof are not even identified. Others are

disputed ones, carried no such explanation.

attributed to Leopoldo Medina, referred to as an

On the second point, although Detective Capacillo did

take the witness stand, he was not examined and he
did not testify as to the facts mentioned in his alleged
report (signed by Detective Zapanta.) All he said was
that he was one of those who investigated "the location
of the fire and, if possible, gather witnesses as to the
occurrence." and that he brought the report with him.
There was nothing, therefore on which he need be
cross-examined; and the contents of the report, as to
which he did not testify, did not thereby become
competent evidence. And even if he had testified, his

who

conducted

the

investigation.

Was

employee at the gas station where the fire occurred; to

Leandro Flores, driver of the tank truck from which
gasoline was being transferred at the time to the
underground tank of the station; and to respondent
Mateo Boquiren, who could not, according to Exhibit VAfrica, give any reason as to the origin of the fire. To
qualify

their

statements

as

"official

information

acquired by the officers who prepared the reports, the

persons who made the statements not only must have
personal knowledge of the facts stated but must have
the duty to give such statements for record. 1

testimony would still have been objectionable as far as

The reports in question do not constitute an exception

information gathered by him from third persons was

to the hearsay rule: the facts stated therein were not

concerned.

acquired by the reporting officers through official

Petitioners maintain, however, that the reports in

themselves,

that

is,

without

further

testimonial

information, not having been given by the informants

pursuant to any duty to do so.

Page 64 of 96
The next question is whether or not, without proof as

"The first point is directed against the sufficiency of

to the cause and origin of the fire, the doctrine of res

plaintiff's evidence to place appellant on its defense.

ipsa loquitur should apply so as to presume negligence

While it is the rule, as contended by the appellant, that

on the part of appellees. Both the trial court and the

in

appellate court refused to apply the doctrine in the

aquiliana, the burden of proof is on the plaintiff to

instant

(its)

establish that the proximate cause of his injury was

applicability . . . in the Philippines, there seems to be

the negligence of the defendant, it is also a recognized

nothing definite," and that while the rules do not

principle that 'Where the thing which caused injury,

prohibit its adoption in appropriate cases, "in the case

without fault of the injured person, is under the

at bar, however, we find no practical use for such

exclusive control of the defendant and the injury is

doctrine." The question deserves more than such

such as in the ordinary course of things does not occur

summary dismissal. The doctrine has actually been

if those having such control use proper care, it affords

applied in this jurisdiction in the case of Espiritu vs.

reasonable evidence, in the absence of the explanation

Philippine Power and Development Co. (C.A. G. R. No.

that the injury arose from defendant's want of care.'

case

on

the

grounds

that

"as

to

L-324O-R, September 20, 1949), wherein the decision

of the Court of Appeals was penned by Mr. Justice
J.B.L. Reyes now a member of the Supreme Court.

case

of

noncontractual

negligence,

or

culpa

"And the burden of evidence is shifted to him to

establish that he has observed due care and diligence.
(San Juan Light & Transit Co. vs. Requena, 224 U.S.

The facts of that case are stated in the decision as

89, 56 L. ed. 68 ). This rule is known by the name of

follows:

res ipsa loquitur (the transaction speaks for itself), and

"In the afternoon of May 5, 1946, while the plaintiffappellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the
province of Laguna, with clear weather and without
any wind blowing, an electric transmission wire,
installed and maintained by the defendant Philippine
Power and Development Co., Inc. alongside the road,
suddenly parted, and one of the broken ends hit the
head of the plaintiff as he was about to board the
truck. As a result, plaintiff received the full shock of
4,400 volts carried by the wire and was knocked
unconscious to the ground. The electric charge coursed
through his body and caused extensive and serious
multiple burns from skull to legs, leaving the bone
exposed in some parts and causing intense pain and
wounds that were not completely healed when the case
was tried on June 18, 1947, over one year after the
mishap."
The defendant therein disclaimed liability on the
ground that the plaintiff had failed to show any specific
act of negligence but the appellate court overruled the
defense under the doctrine of res ipsa loquitur. The
court said:

is peculiarly applicable to the case at bar, where it is

unquestioned that the plaintiff had every right to be on
the highway, and the electric wire was under the sole
control of defendant company. In the ordinary course
of events, electric wires do not part suddenly in fair
weather and injure people, unless they are subjected to
unusual strain and stress or there are defects in their
installation, maintenance and supervision; just as
barrels do not ordinarily roll out of the warehouse
windows to injure passersby unless some one was
negligent. (Byrne vs. Boadle, 2 H & Co. 22; 159 Eng.
Reprint 299, the leading case that established that
rule). Consequently, in the absence of contributory
negligence (which is admittedly not present) the fact
that the wire snapped suffices to raise a reasonable
presumption of negligence in the installation, care and
maintenance. Thereafter, as observed by Chief Baron
Pollock, if there are any facts inconsistent with
negligence, it is for the defendant to prove.'"
It is true of course that decisions of the Court of
Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason
for not applying the particular doctrine of res ipsa
loquitur in the case at bar. Gasoline is a high]y

Page 65 of 96
combustible material, in the storage and sale of which

uncontradicted testimony of plaintiff's witnesses that

extreme care must be taken. On the other hand, fire is

fire started in the underground tank attached to the

not considered a fortuitous event, as it arises almost

filling station while it was being filled from the tank

invariably from some act of man. A case strikingly

truck and while both the tank and the truck were in

similar to the one before Us is Jones vs. Shell

charge of and being operated by the agents or

Petroleum Corporation, et al., 171 So. 447;

employees of the defendant, extended to the hose and

"Arthur O. Jones is the owner of a building in the city

of Hammon which in the year 1934 was leased to the
Shell Petroleum Corporation for a gasoline filling

tank truck, and was communicated from the burning

hose, tank truck, and escaping gasoline to the building
owned by the plaintiff.

station. On October 8, 1934, during the term of the

Predicated on these circumstances and the further

lease, while gasoline was being transferred, from the

circumstance of defendants failure to explain the cause

tank wagon, also operated by the Shell Petroleum

of the fire or to show its lack of knowledge of the cause,

Corporation, to the underground tank of the station, a

plaintiff has evoked the doctrine of res ipsa loquitur.

fire started with resulting damages to the building

There are many cases in which the doctrine may be

owned by Jones. Alleging that the damages to his

successfully invoked and this, we think, is one of them.

building amounted to $516.95, Jones sued the Shell

Petroleum Corporation for the recovery of that amount.
The judge of the district court, after hearing the
testimony, concluded that plaintiff was entitled to a
recovery and rendered judgment in his favor for
$427.82. The Court of Appeals for the First Circuit
reversed this judgment, on the ground the testimony
failed to show with reasonable certainty any negligence
on the part of the Shell Petroleum Corporation or any
of its agents or employees. Plaintiff applied to this
Court for a Writ of Review which was granted, and the
case is now before us for decision."

Where the thing which caused the injury complained of

is shown to be under the management of defendant or
his servants and the accident is such as in the
ordinary course of things does not happen if those who
have its management or control use proper care, it
affords reasonable evidence, in absence of explanation
by defendant, that the accident arose from want of
care. (45 C. J. #768, p. 1193).
"This statement of the rule of res ipsa loquitur has
been widely approved and adopted by the courts of last
resort. Some of the cases in this jurisdiction in which

In resolving the issue of negligence, the Supreme Court

of Louisiana held:

the doctrine has been applied are the following, viz.;

Maus vs. Broderick, 51 La. Ann. 1153, 25 So. 977;
Hebert vs. Lake Charles Ice etc., Co., 111 La. 522, 35

"Plaintiff's petition contains two distinct charges of

So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis vs.

negligence one relating to the cause of the fire and

Vicksburg, etc., R. Co., 115 La. 53, 38 So. 892; Bents,

the other relating to the spreading of the gasoline

vs. Page, 115 La. 560, 39 So. 599."

about the filling station.

The principle enunciated in the aforequoted case

"Other than an expert to asses the damages caused

applies with equal force here. The gasoline station,

plaintiff's building by the fire, no witnesses were placed

with all its appliances, equipment and employees, was

on the stand by the defendant.

under the control of appellees. A fire occurred therein

"Taking up plaintiff's charge of negligence relating to

the cause of the fire, we find it established by the
record that the filling station and the tank truck were
under the control of the defendant and operated by its
agents

or

employees.

We

further

find

from

the

and spread to and burned the neighboring houses. The

persons who knew or could have known how the fire
started were appellees and their employees, but they
gave no explanation thereof whatsoever. It is a fair and
reasonable

inference

that

because of want of care.

the

incident

happened

Page 66 of 96
In the report submitted by Captain Leoncio Mariano of

the gasoline station in question, strengthen the

the Manila Police Department (Exh. X-1 Africa) the

presumption of negligence under the doctrine of res

following appears:

ipsa loquitur, since on their face they called for more

"Investigation of the basic complaint disclosed that the

Caltex Gasoline Station complained of occupies a lot
approximately 10 m x 10 m at the southwest corner of
Rizal Avenue and Antipolo. The location is within a
very busy business district near the Obrero Market, a
railroad

crossing

and

very

thickly

populated

neighborhood where a great number of people mill

around throughout the day until late at night. The
circumstances put the gasoline station in a situation
primarily prejudicial to its operation because the
passersby, those waiting for buses or transportation,
those waiting to cross the streets and others loafing
around have to occupy not only the sidewalks but also
portion of the gasoline station itself. Whatever be the
activities of these people smoking or lighting a cigarette
cannot be excluded and this constitute a secondary
hazard to its operation which in turn endangers the
entire neighborhood to conflagration.

its operator the concrete walls south and west

adjoining the neighborhood are only 2 1/2 meters high
at most and cannot avoid the flames from leaping over
it in case of fire.

circumstances.

There

is

no

more

eloquent

demonstration of this than the statement of Leandro

Flores before the police investigator. Flores was the
driver of the gasoline tank wagon who, alone and
without assistance, was transferring the contents
thereof into the underground storage when the fire
broke out. He said: "Before loading the underground
tank there were no people, but while the loading was
going on, there were people who went to drink cocacola (at the coca-cola stand) which is about a meter
from the hole leading to the underground tank." He
added that when the tank was almost filled he went to
the tank truck to close the valve, and while he had his
back turned to the "manhole" he heard someone shout
"fire."

the neighboring houses were it not for another

negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to
prevent the flames from leaping over it. As it was the
concrete wall was only 2 1/2 meters high, and beyond
that height it consisted merely of galvanized iron

"Records show that there have been two cases of fire

caused

satisfy the standard of due diligence under ordinary

Even then the fire possibly would not have spread to

"Furthermore, aside from precautions already taken by

which

stringent measures of caution than those which would

not

only

material

damages

but

sheets, which would predictably crumple and melt

when

subjected

to

intense

heat.

Defendants'

desperation and also panic in the neighborhood.

negligence, therefore, was not only with respect to the

"Although the soft drinks stand had been eliminated,

thereof to the neighboring houses.

this gasoline service station is also used by its operator

as a garage and repair shop for his fleet of taxicabs
numbering ten or more, adding another risk to the
possible outbreak of fire at this already small but

cause of the fire but also with respect to the spread

There is an admission on the part of Boquiren in his

amended answer to the second amended complaint
that "the fire was caused through the acts of a stranger

crowded gasoline station."

who, without authority, or permission of answering

The foregoing report, having been submitted by a police

negligently threw a lighted match in the premises." No

officer in the performance of his duties on the basis of

evidence on this point was adduced, but assuming the

his own personal observation of the facts reported, may

allegation to be true certainly any unfavorable

properly be considered as an exception to the hearsay

inference from the admission may be taken against

rule. Those facts, descriptive of the location and

Boquiren it does not extenuate his negligence. A

objective circumstances surrounding the operation of

decision of the Supreme Court of Texas, upon facts

defendant, passed through the gasoline station and

Page 67 of 96
analogous to those of the present case, states the rule

station." It is true that Boquiren later on amended his

which we find acceptable here: "It is the rule that those

answer, and that among the changes was one to the

who distribute a dangerous article or agent owe a

effect that he was not acting as agent of Caltex. But

degree of protection to the public proportionate to and

then again, in his motion to dismiss appellants' second

commensurate with a danger involved . . . we think it is

amended complaint the ground alleged was that it

the generally accepted rule as applied to torts that 'if

stated no cause of action since under the allegations

the effects of the actor's negligent conduct actively and

thereof he was merely acting as agent of Caltex, such

continuously operate to bring about harm to another,

that he could not have incurred personal liability. A

the fact that the active and substantially simultaneous

motion to dismiss on this ground is deemed to be an

operation of the effects of a third person's innocent,

admission of the facts alleged in the complaint.

tortious or criminal act is also a substantial factor in

bringing about the harm, does not protect the actor
from liability.' (Restatement of the Law of Torts, vol. 2,
p. 1184, #439. Stated in another way, 'The intervention
of an unforeseen and unexpected cause, is not
sufficient to relieve a wrongdoer from consequences of
negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting
injury.' (MacAfee et al. vs. Traver's Gas Corp., et al.,
153 S.W. 2nd 442.)

Caltex admits that it owned the gasoline station as well

as the equipment therein, but claims that the business
conducted at the service station in question was owned
and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the
nature of their relationship at the time of the fire.
There must have been one in existence at that time.
Instead, what was presented was a license agreement
manifestly tailored for purposes of this case, since it
was entered into shortly before the expiration of the

The next issue is whether Caltex should be held liable

one- year period it was intended to operate. This so-

for the damages caused to appellants. This issue

called

depends on whether Boquiren was an independent

executed on November 29, 1948, but made effective as

contractor, as held by the Court of Appeals, or an agent

of January 1, 1948 so as to cover the date of the fire,

of Caltex. This question, in the light of the facts not

namely, March 18, 1948. This retroactivity provision is

controverted, is one of law and hence may be passed

quite significant, and gives rise to the conclusion that

upon by this Court. These facts are: 1) Boquiren made

it was designed precisely to free Caltex from any

an admission that he was an agent of Caltex; (2) at the

responsibility with respect to the fire, as shown by the

time of the fire Caltex owned the gasoline station and

clause that Caltex "shall not be liable for any injury to

all the equipment therein; (3) Caltex exercised control

person or property while in the property herein

over Boquiren in the management of the station; (4) the

licensed,

delivery truck used in delivering gasoline to the station

LICENSEE

had the name CALTEX painted on it; and (5) the

representative or agent of LICENSOR (Caltex)."

license to store gasoline at the station was in the name

of Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).

license

it

agreement

being

(Exhibit

understood

(Boquiren)

is

5-Caltex)

and

not

an

agreed

was

that

employee,

But even if the license agreement were to govern,

Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay
Caltex the purely nominal sum of P1.00 for the use of

In Boquiren's amended answer to the second amended

the premises and all the equipment therein. He could

complaint, he denied that he directed one of his drivers

sell only Caltex products. Maintenance of the station

to remove gasoline from the truck into the tank and

and its equipment was subject to the approval, in other

alleged that the "alleged driver, if one there was, was

words control, of Caltex. Boquiren could not assign or

not in his employ, the driver being an employee of the

transfer his rights as licensee without the consent of

Caltex (Phil.) Inc. and/or the owners of the gasoline

Caltex. The license agreement was supposed to be from

Page 68 of 96
January 1, 1948 to December 31, 1948, and thereafter

employer and independent contractor, and of avoiding

until terminated by Caltex upon two days prior written

liability for the negligence of the employees about the

notice. Caltex could at any time cancel and terminate

station; but the company was not satisfied to allow

the agreement in case Boquiren ceased to sell Caltex

such relationship to exist. The evidence shows that it

products, or did not conduct the business with due

immediately assumed control, and proceeded to direct

diligence, in the judgment of Caltex. Termination of the

the method by which the work contracted for should be

contract was therefore a right granted only to Caltex

performed. By reserving the right to terminate the

but not to Boquiren. These provisions of the contract

contract at will, it retained the means of compelling

show the extent of the control of Caltex over Boquiren.

submission to its orders. Having elected to assume

The control was such that the latter was virtually an

control and to direct the means and methods by which

employee of the former.

the work has to be performed, it must be held liable for

"Taking into consideration the fact that the operator

owed his position to the company and the latter could
remove him or terminate his services at will; that the
service station belonged to the company and bore its

the negligence of those performing service under its

direction. We think the evidence was sufficient to
sustain the verdict of the jury." (Gulf Refining Company
vs. Rogers 57 S.W. 2d 183).

tradename and the operator sold only the products of

Caltex further argues that the gasoline stored in the

the company; that the equipment used by the operator

station belonged to Boquiren. But no cash invoices

belonged to the company and were just loaned to the

were presented to show that Boquiren had bought said

operator and the company took charge of their repair

gasoline from Caltex. Neither was there a sales

and maintenance; that an employee of the company

contract to prove the same.

supervised

the

operator

and

conducted

periodic

inspection of the company's gasoline and service

station; that the price of the products sold by the
operator was fixed by the company and not by the
operator; and that the receipts signed by the operator
indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the
company and not an independent contractor should
not be disturbed.

As found by the trial court the Africas sustained a loss

of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The
deduction is now challenged as erroneous on the
ground that Article 2207 of the new Civil Code, which
provides for the subrogation of the insurer to the rights
of the insured, was not yet in effect when the loss took
place. However, regardless of the silence of the law on
this point at that time, the amount that should be

"To determine the nature of a contract courts do not

recovered must be measured by the damages actually

have or are not bound to rely upon the name or title

suffered, otherwise the principle prohibiting unjust

given it by the contracting parties, should there be a

enrichment would be violated. With respect to the

controversy as to what they really had intended to

claim of the heirs of Ong, P7,500.00 was adjudged by

enter into, but the way the contracting parties do or

the lower court on the basis of the assessed value of

perform their respective obligations stipulated or

the property destroyed namely, P1,500.00, disregarding

agreed upon may be shown and inquired into, and

the testimony of one of the Ong children that said

should such performance conflict with the name or

property was worth P4,000.00. We agree that the court

title given the contract by the parties, the former must

erred, since it is of common knowledge that the

prevail

the

assessment for taxation purposes is not an accurate

Philippines, Ltd. vs. Firemen's Insurance Company of

gauge of fair market value, and in this case should not

Newark, New Jersey, 100 Phil. 757).

prevail over positive evidence of such value. The heirs

over

the

latter."

Shell

Company

of

"The written contract was apparently drawn for the

purpose of creating the apparent relationship of

of Ong are therefore entitled to P10,000.00.

Page 69 of 96
Wherefore, the decision appealed from is reversed and
respondents- appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid
sums of P9,005.80 and P10,000.00, respectively, with
interest from the filing of the complaint, and costs.

SYLLABUS
1.

CIVIL LAW; DAMAGES; DOCTRINE OF RES

IPSA

LOQUITOR,

APPLIED;

NEGLIGENCE

NOT

PRESUMED. The facts of the case call for the

application of the doctrine, considering that in the

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes,

normal

J.B.L., Barrera, Regala, Bengzon, J.P. and Zaldivar,

manufacturing shop, combustible material such as

JJ., concur.

wood chips, sawdust, paint, varnish and fuel and

of

operations

of

furniture

lubricants for machinery may be found thereon. It

Dizon, J., took no part.

must also be noted that negligence or want of care on

the part of petitioner or its employees was not merely

Footnotes
1.

course

presumed. Even without applying the doctrine of res

Thus, for instance, the record of a justice of the

ipsa loquitur, petitioner's failure to construct a firewall

peace of marriage certificates transmitted to him by the

in accordance with city ordinances would suffice to

corresponding priest is admissible. The justice of the

support a finding of negligence.

peace has no personal knowledge of the marriage, but

it was reported to him by a priest whose duty it was,
under the law, to make the report for record purposes.
Similarly, the tax records of provincial assessor are
admissible even if the assessments were made by
subordinates. So also, are entries of marriages made
by a municipal treasurer in his official record, because
he acquires knowledge thereof by virtue of a statutory
duty on the part of those authorized to solemnize
marriages to send a copy of each marriage contract
solemnized them to the local civil registrar. (See Moran,
Comments on the Rules of Court, Vol. 3 [1957] pp.
389- 395.)

2.

REMEDIAL

LAW;

EVIDENCE;

FACTUAL

FINDINGS OF THE COURT OF APPEALS GENERALLY

NOT DISTURBED. Since the amount of the loss
sustained by private respondents constitutes a finding
of fact, such finding by the Court of Appeals should not
be disturbed by this Court more so when there is no
showing of arbitrariness.
3.

CIVIL

LAW;

DAMAGES;

DEFICIENCY

BETWEEN AMOUNT INDEMNIFIED BY INSURER AND

THE

AMOUNT

OF

LOSS

SUSTAINED

MAY

BE

RECOVERED FROM PERSON CAUSING THE LOSS.

Private respondents have been indemnified by their

15.

insurer in the amount of P35,000.00 for the damage

THIRD DIVISION

Court holds that in accordance with Article 2207 of the

caused to their house and its contents. Hence, the

Civil Code the amount of P35,000.00 should be

[G.R. No. 52732. August 29, 1988.]

deducted from the amount awarded as damages.

F.F. CRUZ and CO., INC., petitioner, vs. THE COURT

OF APPEALS, GREGORIO MABLE as substituted by
his

wife

LUZ

ALMONTE

MABLE

and

children

Having been indemnified by their insurer, private

respondents are only entitled to recover the deficiency
from petitioner.

DOMING, LEONIDAS, LIGAYA, ELENA, GREGORIO,

4.

JR.,

THERETO UNDER ART. 2207. The insurer, if it is so

SALOME,

ANTONIO,

and

BERNARDO

all

ID.;

SUBROGATION;

INSURER

ENTITLED

surnamed MABLE, respondents.

minded, may seek reimbursement of the amount it

Luis S. Topacio for petitioner.

the essence of its right to be subrogated to the rights of

Mauricio M. Monta for respondents.

indemnified private respondents from petitioner. This is

the insured, as expressly provided in Article 2207.
Upon payment of the loss incurred by the insured, the

Page 70 of 96
insurer is entitled to be subrogated pro tanto to any

the burned structures negative for the presence of

right of action which the insured may have against the

inflammable substances.

third person whose negligence or wrongful act caused

the loss [Fireman's Fund Insurance Co. v. Jamila &
Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA
323.]
5.

ID.;

ID.;

DISCRETIONARY;

EXERCISE
INSURER,

REAL

OF

RIGHT,

PARTY

IN

INTEREST WITH REGARD TO INDEMNITY AWARDED

TO THE INSURED. Under Article 2207, the real
party in interest with regard to the indemnity received
by the insured is the insurer [Phil. Air Lines, Inc. v.
Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or
not the insurer should exercise the rights of the
insured to which it had been subrogated lies solely
within the former's sound discretion. Since the insurer

Subsequently,

private

respondents

collected

P35,000.00 on the insurance on their house and the

contents thereof.
On January 23, 1975, private respondents filed an
action for damages against petitioner, praying for a
judgment in their favor awarding P150,000.00 as
actual

damages,

P50,000.00

as

moral

damages,

P25,000.00 as exemplary damages, P20,000.00 as

attorney's fees and costs. The Court of First Instance
held for private respondents:
WHEREFORE, the Court hereby renders judgment, in
favor of plaintiffs, and against the defendant:

is not a party to the case, its identity is not of record

1.

and no claim is made on its behalf, the private

the amount of P80,000.00 for damages suffered by said

respondent's

plaintiffs for the loss of their house, with interest of 6%

insurer

has

to

claim

his

right

to

reimbursement of the P35,000.00 paid to the insured.

DECISION
CORTES, J p:
This petition to review the decision of the Court of
Appeals puts in issue the application of the common
law doctrine of res ipsa loquitur. prcd
The essential facts of the case are not disputed.

Ordering the defendant to pay to the plaintiffs

from the date of the filing of the Complaint on January

23, 1975, until fully paid;
2.

Ordering the defendant to pay to the plaintiffs

the sum of P50,000.00 for the loss of plaintiffs'

furnitures, religious images, silverwares, chinawares,
jewelries, books, kitchen utensils, clothing and other
valuables, with interest of 6% from date of the filing of
the Complaint on January 23, 1975, until fully paid;
3.

Ordering the defendant to pay to the plaintiffs

The furniture manufacturing shop of petitioner in

the sum of P5,000.00 as moral damages, P2,000.00 as

Caloocan City was situated adjacent to the residence of

exemplary damages, and P5,000.00 as and by way of

private respondents. Sometime in August 1971, private

attorney's fees;

respondent Gregorio Mable first approached Eric Cruz,

petitioner's plant manager, to request that a firewall be
constructed between the shop and private respondents'
residence. The request was repeated several times but
they fell on deaf ears. In the early morning of

4.

With costs against the defendant;

5.

Counterclaim is ordered dismissed, for lack of

merit. [CA Decision, pp. 1-2; Rollo, pp. 29-30.]

September 6, 1974, fire broke out in petitioner's shop.

On appeal, the Court of Appeals, in a decision

Petitioner's employees, who slept in the shop premises,

promulgated on November 19, 1979, affirmed the

tried to put out the fire, but their efforts proved futile.

decision of the trial court but reduced the award of

The fire spread to private respondents' house. Both the

damages:

shop and the house were razed to the ground. The

cause of the conflagration was never discovered. The
National Bureau of Investigation found specimens from

WHEREFORE, the decision declaring the defendants

liable is affirmed. The damages to be awarded to

Page 71 of 96
plaintiff should be reduced to P70,000.00 for the house

from want of care. [Africa v. Caltex (Phil.), Inc., G.R. No.

and P50,000.00 for the furniture and other fixtures

L-12986, March 31, 1966, 16 SCRA 448.]

with legal interest from the date of the filing of the

complaint until full payment thereof [CA Decision, p. 7;
Rollo, p. 35.]

Thus, in Africa, supra, where fire broke out in a Caltex

service station while gasoline from a tank truck was
being unloaded into an underground storage tank

A motion for reconsideration was filed on December 3,

through a hose and the fire spread to and burned

1979 but was denied in a resolution dated February

neighboring houses, this Court, applying the doctrine

18, 1980. Hence, petitioner filed the instant petition for

of res ipsa loquitur, adjudged Caltex liable for the loss.

review on February 22, 1980.

The facts of the case likewise call for the application of

After the comment and reply were filed, the Court

the doctrine, considering that in the normal course of

resolved to deny the petition for lack of merit on June

operations

11, 1980. However, petitioner filed a motion for

combustible material such as wood chips, sawdust,

reconsideration, which was granted, and the petition

paint, varnish and fuel and lubricants for machinery

was given due course on September 12, 1980. After the

may be found thereon.

parties filed their memoranda, the case was submitted

for decision on January 21, 1981.

In not deducting the sum of P35,000.00, which

their house, from the award of damages.

In

awarding

excessive

manufacturing

shop,

It must also be noted that negligence or want of care

and/or

petitioner failed to construct a firewall between its shop

and the residence of private respondents as required
by a city ordinance; that the fire could have been
caused by a heated motor or a lit cigarette; that

unproved

damages.
3.

furniture

merely presumed. The Court of Appeals found that

private respondents recovered on the insurance on

2.

on the part of petitioner or its employees was not

Petitioner contends that the Court of Appeals erred:

1.

of

gasoline and alcohol were used and stored in the shop;

and that workers sometimes smoked inside the shop
[CA Decision, p. 5; Rollo, p. 33.]

In applying the doctrine of res ipsa loquitur to

the facts of the instant case.

Even without applying the doctrine of res ipsa loquitur,

The pivotal issue in this case is the applicability of the

with city ordinances would suffice to support a finding

common law doctrine of res ipsa loquitur, the issue of

of negligence.

petitioner's failure to construct a firewall in accordance

damages being merely consequential. In view thereof,

the errors assigned by petitioner shall be discussed in
the reverse order. prcd
1.

The

doctrine

Even then the fire possibly would not have spread to

the neighboring houses were it not for another
negligent omission on the part of defendants, namely,

whose

their failure to provide a concrete wall high enough to

application to the instant case petitioner objects to,

of

res

ipsa

loquitur,

prevent the flames from leaping over it. As it was the

may be stated as follows:

concrete wall was only 2-1/2 meters high, and beyond

Where the thing which caused the injury complained of

is shown to be under the management of the defendant
or his servants and the accident is such as in the
ordinary course of things does not happen if those who
have its management or control use proper care, it
affords

reasonable

evidence,

in

the

absence

of

explanation by the defendant, that the accident arose

that height it consisted merely of galvanized iron

sheets, which would predictably crumble and melt
when

subjected

to

intense

heat.

Defendant's

negligence, therefore, was not only with respect to the

cause of the fire but also with respect to the spread
thereof to the neighboring houses. [Africa Y. Caltex
(Phil.) Inc., supra; Emphasis supplied.]

Page 72 of 96
In the instant case, with more reason should petitioner

3.

be found guilty of negligence since it had failed to

for damages to private respondents as found by the

construct a firewall between its property and private

Court of Appeals, the fact that private respondents

respondents' residence which sufficiently complies with

have been indemnified by their insurer in the amount

the pertinent city ordinances. The failure to comply

of P35,000.00 for the damage caused to their house

with an ordinance providing for safety regulations had

and its contents has not escaped the attention of the

been ruled by the Court as an act of negligence [Teague

Court. Hence, the Court holds that in accordance with

v. Fernandez, G.R. No. L-29745, June 4, 1973, 51

Article

SCRA 181.]

P35,000.00 should be deducted from the amount

The Court of Appeals, therefore, had more than

While this Court finds that petitioner is liable

2207

of

the

Civil

Code

the

amount

of

awarded as damages. Said article provides:

adequate basis to find petitioner liable for the loss

Art. 2207.

sustained by private respondents. cdll

insured, and he has received indemnity from the

2.

Since the amount of the loss sustained by

private respondents constitutes a finding of fact, such

finding by the Court of Appeals should not be
disturbed by this Court [M.D. Transit & Taxi Co., Inc. v.
Court of Appeals, G.R. No. L-23882, February 17,
1968, 22 SCRA 559], more so when there is no
showing of arbitrariness.

Appeals, were in agreement as to the value of private

respondents' furniture and fixtures and personal
effects lost in the fire (i.e. P50,000.00). With regard to
the house, the Court of Appeals reduced the award to
from

insurance company for the injury or loss arising out of

the wrong or breach of contract complained of, the
insurance company is subrogated to the rights of the
insured against the wrongdoer or the person who
violated the contract. If the amount paid by the
insurance company does not fully cover the injury or
loss, the aggrieved party shall be entitled to recover the
deficiency from the person causing the loss or injury.

In the instant case, both the CFI and the Court of

P70,000.00

If the plaintiff's property has been

P80,000.00.

Such

cannot

be

(Emphasis supplied.)
The law is clear and needs no interpretation. Having
been indemnified by their insurer, private respondents
are only entitled to recover the deficiency from
petitioner. LLphil

categorized as arbitrary considering that the evidence

On the other hand, the insurer, if it is so minded, may

shows that the house was built in 1951 for P40,000.00

seek reimbursement of the amount it indemnified

and,

its

private respondents from petitioner. This is the essence

reconstruction would cost P246,000.00. Considering

of its right to be subrogated to the rights of the

the appreciation in value of real estate and the

insured, as expressly provided in Article 2207. Upon

diminution of the real value of the peso, the valuation

payment of the loss incurred by the insured, the

of the house at P70,000.00 at time it was razed cannot

insurer is entitled to be subrogated pro tanto to any

be said to be excessive.

right of action which the insured may have against the

according

to

private

respondents,

third person whose negligence or wrongful act caused

the loss [Fireman's Fund Insurance Co. v. Jamila &
Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA
323.]
Under Article 2207, the real party in interest with
regard to the indemnity received by the insured is the
insurer [Phil. Air Lines, Inc. v. Heald Lumber Co., 101
Phil. 1031, (1957).] Whether or not the insurer should
exercise the rights of the insured to which it had been

Page 73 of 96
subrogated lies solely within the former's sound

are when the factual findings of the trial court and the

discretion. Since the insurer is not a party to the case,

appellate court conflict, when the appealed decision is

its identity is not of record and no claim is made on its

clearly contradicted by the evidence on record, or when

behalf, the private respondent's insurer has to claim

the appellate court misapprehended the facts.

his right to reimbursement of the P35,000.00 paid to

the insured.

2.

ID.; EVIDENCE; CREDIBILITY OF WITNESSES;

EVEN WHEN A WITNESS IS FOUND TO HAVE

WHEREFORE, in view of the foregoing, the decision of

DELIBERATELY

the Court of Appeals is hereby AFFIRMED with the

PARTICULARS, IT IS NOT REQUIRED THAT THE

following modifications as to the damages awarded for

WHOLE OF HIS UNCORROBORATED TESTIMONY BE

the loss of private respondents' house, considering

REJECTED,

their receipt of P35,000.00 from their insurer: (1) the

DEEMED WORTHY OF BELIEF BE CREDITED. The

damages awarded for the loss of the house is reduced

phrase relied upon by the trial court does not negate

to P35,000.00; and (2) the right of the insurer to

the fact that Dr. Kho saw a piece of rubber in private

subrogation

from

respondent Villegas' abdomen, and that she sent it to a

petitioner for the P35,000.00 it had paid private

laboratory and then to Cebu City for examination by a

respondents is recognized.

pathologist. Not even the Pathologist's Report, although

and

thus

seek

reimbursement

FALSIFIED

BUT

IN

SUCH

SOME

PORTIONS

MATERIAL

THEREOF

devoid of any mention of a piece of rubber, could alter

SO ORDERED. prLL

what Dr. Kho saw. Furthermore, Dr. Kho's knowledge

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ.,

concur.

of the piece of rubber could not be based on other than

first hand knowledge for, as she asserted before the
trial court. The petitioners emphasize that the private
respondents never reconciled Dr. Kho's testimony with
Dr. Batiquin's claim on the witness stand that when

16.

Dr. Batiquin confronted Dr. Kho about the foreign body,

THIRD DIVISION

the latter said that there was a piece of rubber but that

[G.R. No. 118231. July 5, 1996.]

claim was not objected to, and hence, the same is

she threw it away. Although hearsay, Dr. Batiquin's

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN,

petitioners, vs. COURT OF APPEALS, SPOUSES

admissible

but

Nevertheless,

it

carries

assuming

no

probative

otherwise,

Dr.

value.

Batiquin's

statement cannot belie the fact that Dr. Kho found a

QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS,

piece of rubber near private respondent Villegas's

respondents.

uterus. And even if we were to doubt Dr. Kho as to

what she did to the piece of rubber, i.e., whether she

Paras & Associates for petitioners.

threw it away or sent it to Cebu City, we are not

Frederick E. Bustamante for private respondents.

justified in distrusting her as to her recovery of a piece

of rubber from private respondent Villegas' abdomen.

SYLLABUS

On this score, it is perfectly reasonable to believe the

1.

disbelieve his testimony with respect to other facts.

REMEDIAL LAW; SPECIAL CIVIL ACTIONS; AS

A GENERAL RULE, ONLY QUESTIONS OF LAW MAY

BE

RAISED

IN

PETITION

FOR

REVIEW

ON

CERTIORARI; EXCEPTIONS. While the rule is that

only questions of law may be raised in a petition for
review on certiorari, there are exceptions, among which

testimony of a witness with respect to some facts and

And it has been aptly said that even when a witness is
found to have deliberately falsified in some material
particulars, it is not required that the whole of his
uncorroborated

testimony

be

rejected,

but

such

Page 74 of 96
portions thereof deemed worthy of belief may be

private respondents were bereft of direct evidence as to

credited.

the actual culprit or the exact cause of the foreign

3.

ID.;

ID.;

ID.;

POSITIVE

TESTIMONY

IS

STRONGER THAN NEGATIVE TESTIMONY. It is here

worth nothing that the trial court paid heed to the
following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation, and that there
was neither any tear on Dr. Batiquin's gloves after the
operation nor blood smears on her hands upon
removing her gloves. Moreover, the trial court pointed
out

that

the

absence

of

rubber

drain

was

corroborated by Dr. Doris Sy, Dr. Batiquin's assistant

during the operation on private respondent Villegas.
But the trial court failed to recognize that the
assertions of Drs. Batiquin and Sy were denials or
negative testimonies. Well-settled is the rule that
positive testimony is stronger than negative testimony.
Of course, as the petitioners advocate, such positive
testimony must come from a credible source, which
leads us to the second assigned error. While the
petitioners claim that contradictions and falsities
punctured Dr. Kho's testimony, a reading of the said
testimony reveals no such infirmity and establishes Dr.
Kho as a credible witness. Dr. Kho was frank
throughout

her

turn

on

the

witness

stand.

Furthermore, no motive to state any untruth was ever

imputed against Dr. Kho, leaving her trustworthiness
unimpaired. The trial court's following declaration
shows that while it was critical of the lack of care with
which Dr. Kho handled the piece of rubber, it was not
prepared to doubt Dr. Kho's credibility, thus only
supporting out appraisal of Dr. Kho's trustworthiness.
Considering that we have assessed Dr. Kho to be a
credible witness, her positive testimony [that a piece of
rubber

was

indeed

found

in

private

respondent

Villegas' abdomen] prevails over the negative testimony

in favor of the petitioners.
4.

ID.;

ID.;

ID.;

DOCTRINE

object finding its way into private respondent Villegas's

body, which, needless to say, does not occur unless
through the intervention of negligence. Second, since
aside from the cesarean section, private respondent
Villegas underwent no other operation which could
have caused the offending piece of rubber to appear in
her uterus, it stands to reason that such could only
have been a by-product of the cesarean section
performed by Dr. Batiquin. The petitioners, in this
regard,

failed

to

overcome

the

presumption

of

negligence arising from resort to the doctrine of res

ipsa loquitur. Dr. Batiquin is therefore liable for
negligently leaving behind a piece of rubber in private
respondent Villegas' abdomen and for all the adverse
effects thereof.
DECISION
DAVIDE, JR., J p:
Throughout history, patients have consigned their fates
and lives to the skill of their doctors. For a breach of
this trust, men have been quick to demand retribution.
Some 4,000 years ago, the Code of Hammurabi 1 then
already provided: "If a physician make a deep incision
upon a man with his bronze lancet and cause the
man's death, or operate on the eye socket of a man
with his bronze lancet and destroy the man's eyes, they
shall cut off his hand." 2 Subsequently, Hippocrates 3
wrote what was to become part of the healer's oath: "I
will follow that method of treatment which according to
my ability and judgment, I consider for the benefit of
my patents, and abstain from whatever is deleterious
and mischievous . . . While I continue to keep this oath
unviolated may it be granted me to enjoy life and
practice the art, respected by all men at all times but
should I trespass and violate this oath, may the reverse

OF

RES

IPSA

LOQUITUR; APPLICABLE IN CASE AT BAR. In the

instant case, all the requisites for recourse to the
doctrine of res ipsa loquitur are present. First, the
entire proceedings of the cesarean section were under
the exclusive control of Dr. Batiquin. In this light, the

be my lot." At present, the primary objective of the

medical profession is the preservation of life and
maintenance of the health of the people. 4
Needless to say then, when a physician strays from his
sacred duty and endangers instead the life of his
patient, he must be made to answer therefor. Although

Page 75 of 96
society

today

cannot

and

will

not

tolerate

the

In the meantime, Mrs. Villegas was given a Medical

punishment meted out by the ancients, neither will it

Certificate by Dr. Batiquin on October 31, 1988 . . .

and this Court, as this case would show, let the act go

certifying to her physical fitness to return to her work

uncondemned.

on November 7, 1988. So on the second week of

The petitioners appeal from the decision 5 of the Court

of Appeals of 11 May 1994 in CA-G.R. CV No. 30851,

November, 1988 Mrs. Villegas returned to her work at

the Rural Bank of Ayungon, Negros Oriental.

which reversed the decision 6 of 21 December 1990 of

The abdominal pains and fever kept on recurring and

Branch 30 of the Regional Trial Court (RTC) of Negros

bothered Mrs. Villegas no end and despite the

Oriental in Civil Case No. 9492.

medications administered by Dr. Batiquin. When the

The facts, as found by the trial court, are as follows:

Dr. Batiquin was a Resident Physician at the Negros
Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987
and September, 1989 she was also the Actg. Head of
the Department of Obstetrics and Gynecology at the
said Hospital.

pains become unbearable and she was rapidly losing

weight she consulted Dr. Ma. Salud Kho at the Holy
Child's Hospital in Dumaguete City on January 20,
1989.
The evidence of Plaintiffs show that when Dr. Ma.
Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas
to be feverish, pale and was breathing fast. Upon

Mrs. Villegas is a married woman who submitted to Dr.

Batiquin for prenatal care as the latter's private patient

examination she felt an abdominal mass one finger

below the umbilicus which she suspected to be either a

sometime before September 21, 1988.

tumor of the uterus or an ovarian cyst, either of which

In the morning of September 21, 1988 Dr. Batiquin

Villegas ' chest, abdomen and kidney. She also took

with the assistance of Dr. Doris Teresita Sy who was

blood tests of Plaintiff. A blood count showed that Mrs.

also a Resident Physician at the same Hospital, C.I.

Villegas had [an] infection inside her abdominal cavity.

and O.R. Nurse Arlene Diones and some student

The results of all those examinations impelled Dr. Kho

nurses performed a simple cesarean section on Mrs.

to suggest that Mrs. Villegas submit to another surgery

Villegas at the Negros Oriental Provincial Hospital and

to which the latter agreed.

could be cancerous. She had an x-ray taken of Mrs.

after 45 minutes Mrs. Villegas delivered her first Child,

Rachel

Acogido,

at

about

11:45

that

morning.

Thereafter, Plaintiff remained confined at the Hospital

until September 27, 1988 during which period of
confinement she was regularly visited by Dr. Batiquin.
On September 28, 1988 Mrs. Villegas checked out of
the Hospital . . . and on the same day she paid Dr.
Batiquin, thru the latter's secretary, the amount of

When Dr. Kho opened the abdomen of Mrs. Villegas

she found whitish-yellow discharge inside, an ovarian
cyst on each of the left and right ovaries which gave
out pus, dirt and pus behind the uterus, and a piece of
rubber materials on the right side of the uterus
embedded on [sic] the ovarian cyst. 2 inches by 3/4
inch in size. This piece of rubber material which Dr.

P1,500.00 as "professional fee" . . .

Kho described as a "foreign body" looked like a piece of

Soon after leaving the Hospital Mrs. Villegas began to

drain like . . . It could have been a torn section of a

suffer abdominal pains and complained of being

surgeon's gloves or could have come from other

feverish. She also gradually lost her appetite, so she

sources. And this foreign body was the cause of the

consulted Dr. Batiquin at the latter's polyclinic who

infection of the ovaries and consequently of all the

prescribed for her certain medicines . . . which she had

discomfort suffered by Mrs. Villegas after her delivery

been taking up to December, 1988.

on September 21, 1988. 7

a "rubber glove" . . . and which is [sic] also "rubber-

Page 76 of 96
The piece of rubber allegedly found near private

The Court of Appeals reviewed the entirety of Dr. Kho's

respondent Flotilde Villegas's uterus was not presented

testimony and, even without admitting the private

in court, and although Dr. Ma. Salud Kho testified that

respondents' documentary evidence, deemed Dr. Kho's

she sent it to a pathologist in Cebu City for

positive testimony to definitely establish that a piece of

examination,

rubber was found near private respondent Villegas's

it

was

not

mentioned

in

the

pathologist's Surgical Pathology Report. 9

uterus. Thus, the Court of Appeals reversed the

Aside from Dr. Kho's testimony, the evidence which

mentioned

the

piece

of

rubber

are

Medical

decision of the trial court, holding:

4.

The fault or negligence of appellee Dr. Batiquin

Certificate, 10 a Progress Record, 11 an Anesthesia

is established by preponderance of evidence. The trial

Record, 12 a Nurse's Record, 13 and a Physician's

court itself had narrated what happened to appellant

Discharge Summary. 14 The trial court, however,

Flotilde after the caesarean operation made by appellee

regarded these documentary evidence as mere hearsay,

doctor . . . After the second operation, appellant

"there being no showing that the person or persons

Flotilde became well and healthy. Appellant Flotilde's

who prepared them are deceased or unable to testify on

troubles were caused by the infection due to the

the facts therein stated . . . Except for the Medical

"rubber" that was left inside her abdomen. Both

Certificate (Exhibit "F"), all the above documents were

appellants testified that after the operation made by

allegedly prepared by persons other than Dr. Kho, and

appellee doctor, they did not go to any other doctor

she merely affixed her signature on some of them to

until they finally decided to see another doctor in

express her agreement thereto . . . " 15 The trial court

January, 1989 when she was not getting any better

also refused to give weight to Dr. Kho's testimony

under the care of appellee Dr. Batiquin . . . Appellee Dr.

regarding the subject piece of rubber as Dr. Kho "may

Batiquin admitted on the witness stand that she alone

not have had first-hand knowledge" thereof, 16 as

decided when to close the operating area; that she

could be gleaned from her statement, thus:

examined the portion she operated on before closing

. . . I have heard somebody that [sic] say [sic]

there is [sic] a foreign body that goes with the tissues

but unluckily I don't know where the rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's

the same . . . Had she exercised due diligence, appellee

Dr. Batiquin would have found the rubber and removed
it before closing the operating area. 20
The appellate court then ruled:

testimony that when she confronted Dr. Kho regarding

Appellants' evidence show[s] that they paid a total of

the piece of rubber, "Dr. Kho answered that there was

P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus

rubber indeed but that she threw it away. " 18 This

hospital and medical expenses together with doctor's

statement, the trial court noted, was never denied nor

fees in the total amount P9,900.00 (Exhs. G and G-2)]

disputed by Dr. Kho, leading it to conclude:

for the second operation that saved her life.

There

are

now

two

different

versions

on

the

For the miseries appellants endured for more than

whereabouts of that offending "rubber" (1) that it

three (3) months, due to the negligence of appellee Dr.

was sent to the Pathologist in Cebu as testified to in

Batiquin, they are entitled to moral damages in the

Court by Dr. Kho and (2) that Dr. Kho threw it away as

amount of P100,000.00; exemplary damages in the

told by her to Defendant. The failure of the Plaintiffs to

amount of P20,000.00 and attorney's fees in the

reconcile these two different versions serve only to

amount of P25,000.00.

weaken their claim against Defendant Batiquin. 19

The fact that appellant Flotilde can no longer bear

All told, the trial court held in favor of the petitioners

children because her uterus and ovaries were removed

herein.

by Dr. Kho is not taken into consideration as it is not

Page 77 of 96
shown that the removal of said organs were the direct

result of the rubber left by appellee Dr. Batiquin near

my mind, just in case this would turn out to be a

the uterus. What is established is that the rubber left

medico-legal case, I have heard somebody that [sic]

by appellee cause infection, placed the life of appellant

says [sic] there is [sic] a foreign body that goes with the

Flotilde in jeopardy and caused appellants fear, worry

tissues but unluckily I don't know where the rubber

and anxiety . . .

was. It was not in the Lab, it was not in Cebu. 23

WHEREFORE, the appealed judgment, dismissing the

Just in case, I was just thinking at the back of

(emphasis supplied)

complaint for damages is REVERSED and SET ASIDE.

The petitioners prefer the trial court's interpretation of

Another

ordering

the above testimony, i.e., that Dr. Kho's knowledge of

defendants-appellees to pay plaintiffs-appellants the

the piece of rubber was based on hearsay. The Court of

amount of P17,000.00 as and for actual damages;

Appeals, on the other hand, concluded that the

P100,000.00 as and for moral damages; P20,000.00 as

underscored phrase was taken out of context by the

and for exemplary damages; and P25,000.00 as and for

trial court. According to the Court of Appeals, the trial

attorney's fees plus the cost of litigation.

court should have likewise considered the other

judgment

is

hereby

entered

portions

SO ORDERED. 21

this Court claiming that the appellate court; (1)

committed grave abuse of discretion by resorting to
findings of fact not supported by the evidence on
record, and (2) exceeded its discretion, amounting to
lack or excess of jurisdiction, when it gave credence to
punctured

Dr.

Kho's

testimony,

especially

the

following:

From the above judgment, the petitioners appealed to

testimonies

of

with

contradictions

and

falsities.
The private respondents commented that the petition
raised only questions of fact, which were not proper for
review by this Court.

So you did actually conduct the operation on

her?
A

Yes, I did.

And what was the result?

Opening up her abdomen, there was whitish-

yellow discharge inside the abdomen, there was an

ovarian cyst on the left and side and there was also an
ovarian cyst on the right which, on opening up or
freeing it up from the uterus, turned out to be pus.
Both ovaries turned out . . . to have pus. And the,

While the rule is that only questions of law may be

cleaning up the uterus, at the back of the uterus it was

raised in a petition for review on certiorari, there are

very dirty, it was full of pus. And there was a [piece of]

exceptions, among which are when the factual findings

rubber we found a [piece of] rubber on the right side.

of the trial court and the appellate court conflict, when

24

the appealed decision is clearly contradicted by the

evidence on record, or when the appellate court
misapprehended the facts. 22

We agree with the Court of Appeals. The phrase relied

upon by the trial court does not negate the fact that
Dr. Kho saw a piece of rubber in private respondent

After deciphering the cryptic petition, we find that the

Villegas's abdomen, and that she sent it to a laboratory

focal point of the instant appeal is the appreciation of

and

Dr. Kho's testimony. The petitioner contend that the

pathologist. 25 Not even the Pathologist's Report,

Court of Appeals misappreciated the following portion

although devoid of any mention of a piece of rubber,

of Dr. Kho's testimony:

could alter what Dr. Kho saw. Furthermore, Dr. Kho's

What is the purpose of the examination?

then

to

Cebu

City

for

examination

by

knowledge of the piece of rubber could not be based on

other than first hand knowledge for, as she asserted
before the trial court:

Page 78 of 96
Q

But you are sure you have seen [the piece of

testimony must come from a credible source, which

rubber]?

leads us to the second assigned error.

While the petitioners claim that contradictions and

Oh yes. I was not the only one who saw it. 26

The petitioners emphasize that the private respondents

never

reconciled

Dr.

Kho's

testimony

with

Dr.

Batiquin's claim on the witness stand that when Dr.

Batiquin confronted Dr. Kho about the foreign body,
the latter said that there was a piece of rubber but that
she threw it away. Although hearsay, Dr. Batiquin's
claim was not objected to, and hence, the same is
admissible 27 but it carries no probative value. 28
Nevertheless,

assuming

otherwise,

Dr.

Batiquin's

statement cannot belie the fact that Dr. Kho found a

piece of rubber near private respondent Villegas

falsities punctured Dr. Kho's testimony, a reading of

the said testimony reveals no such infirmity and
establishes Dr. Kho as a credible witness. Dr. Kho was
frank throughout her turn on the witness stand.
Furthermore, no motive to state any untruth was ever
imputed against Dr. Kho, leaving her trustworthiness
unimpaired. 34 The trial court's following declaration
shows that while it was critical of the lack of care with
which Dr. Kho handled the piece of rubber, it was not
prepared to doubt Dr. Kho's credibility, thus only
supporting out appraisal of Dr. Kho's trustworthiness:

uterus. And even if we were to doubt Dr. Kho as to

This is not to say that she was less than honest when

what she did to the piece of rubber, i.e., whether she

she testified about her findings, but it can also be said

threw it away or sent it to Cebu City, we are not

that she did not take the most appropriate precaution

justified in distrusting her as to her recovery of a piece

to preserve that "piece of rubber" as an eloquent

of rubber from private respondent Villegas's abdomen.

evidence of what she would reveal should there be a

On this score, it is perfectly reasonable to believe the

"legal problem" which she claim[s] to have anticipated.

testimony of a witness with respect to some facts and

35

disbelieve his testimony with respect to other facts.

And it has been aptly said that even when a witness it
found to have deliberately falsified in some material
particulars, it is not required that the whole of his
uncorroborated

testimony

be

rejected,

but

such

portions thereof deemed worthy of belief may be

credited. 29
It is here worth nothing that the trial court paid heed
to the following portions of Dr. Batiquin's testimony:
that no rubber drain was used in the operation, 30
and that there was neither any tear on Dr. Batiquin's
gloves after the operation nor blood smears on her
hands upon removing her gloves. 31 Moreover, the trial
court pointed out that the absence of a rubber drain
was corroborated by Dr. Doris Sy, Dr. Batiquin's
assistant during the operation on private respondent
Villegas. 32 But the trial court failed to recognize that
the assertions of Drs. Batiquin and Sy were denials or
negative testimonies. Well-settled is the rule that

Considering that we have assessed Dr. Kho to be a

credible witness, her positive testimony [that a piece of
rubber

was

Villegas's

indeed

abdomen]

found

in

prevails

private
over

respondent

the

negative

testimony in favor of the petitioners.

As such, the rule of res ipsa loquitur comes to fore.
This Court has had occasion to delve into the nature
and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where
the thing which causes injury is shown to be under the
management of the defendant, and the accident is
such as in the ordinary course of things does not
happen if those who have the management use proper
care, it affords reasonable evidence, in the absence of
an explanation by the defendant, that the accident
arose from want of care." Or as Black's Law Dictionary
puts it:

positive testimony is stronger than negative testimony.

Res ipsa loquitur.

The

thing

speaks

for

itself.

33 Of course, as the petitioners advocate, such positive

Rebuttable presumption or inference that defendant

was negligent, which arises upon proof that [the]

Page 79 of 96
instrumentality causing injury was in defendant's

which, needless to say, does not occur unless through

exclusive control, and that the accident was one which

the intervention of negligence. Second, since aside

ordinary does not happen in absence of negligence. Res

from the caesarean section, private respondent Villegas

ipsa loquitur is [a] rule of evidence whereby negligence

underwent no other operation which could have

of [the] alleged wrongdoer may be inferred from [the]

caused the offending piece of rubber to appear in her

mere fact that [the] accident happened provided [the]

uterus, it stands to reason that such could only have

character

circumstances

been a by-product of the cesarean section performed

attending it lead reasonably to belief that in [the]

by Dr. Batiquin. The petitioners, in this regard, failed to

absence of negligence it would not have occurred and

overcome the presumption of negligence arising from

that thing which caused injury is shown to have been

resort to the doctrine of res ipsa loquitur. Dr. Batiquin

under [the] management and control of [the] alleged

is therefore liable for negligently leaving behind a piece

wrongdoer . . . Under [this] doctrine . . . the happening

of rubber in private respondent Villegas's abdomen and

of an injury permits an inference of negligence where

for all the adverse effects thereof.

of

[the]

accident

and

the plaintiff produces substantial evidence that [the]

injury was caused by an agency or instrumentality
under [the] exclusive control and management of
defendant, and that the occurrence [sic] was such that
in the ordinary course of things would not happen if
reasonable care had been used.
xxx

xxx

xxx

that prima facie negligence may be established without

direct proof and furnishes a substitute for specific
proof of negligence. The doctrine is not a rule of
substantive law, but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to
the facts and circumstances of a particular case, is not
and

does

not

the people, 37 and State's compelling interest to enact

measures to protect the public from " the potentially
deadly effects of incompetence and ignorance in those
disease or trauma." 38 Indeed, a physician is bound to

is peculiar to the law of negligence which recognizes

to

the vital role the medical profession plays in the lives of

who would undertake to treat our bodies and minds for

The doctrine of [r]es ipsa loquitur as a rule of evidence

intended

As a final word, this Court reiterates its recognition of

dispense

with

serve the interest of his patients "with the greatest of

solicitude, giving them always his best talent and skill.
" 39 Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of
her profession's rigid ethical code and in contravention
of the legal standards set forth for professionals, in the
general, 40 and members of the medical profession, 41
in particular.

the

WHEREFORE, the challenged decision of 11 May 1994

requirement of proof of culpable negligence on the

of the Court of Appeals in CA-G.R. CV No. 30851 is

party charged. It merely determines and regulates what

hereby AFFIRMED in toto.

shall the prima facie evidence thereof and facilitates

the burden of plaintiff of proving a breach of the duty
of due care. The doctrine can be invoked when and
only when, under the circumstances involved direct
evidence is absent and not readily available. 36
In the instant case, all the requisites for recourse to
the doctrine are present. First, the entire proceedings
of the caesarean section were under the exclusive
control of Dr. Batiquin. In this light, the private
respondents were bereft of direct evidence as to the
actual culprit or the exact cause of the foreign object
finding its way into private respondent Villegas's body,

Costs against the petitioners.

SO ORDERED.
Narvasa, C .J ., Melo, Francisco and Panganiban, JJ .,
concur.
17.
[G.R. No. 45985. May 18, 1990.]

Page 80 of 96
CHINA AIR LINES, LTD., petitioner, vs. COURT OF

Inc., a local firm dealing in insecticides, pesticides and

APPEALS,

related services appurtenant thereto, purchased a

JOSE

PAGSIBIGAN,

PHILIPPINE

AIR

LINES, INC. and ROBERTO ESPIRITU, respondents.

plane ticket for a Manila-Taipei-Hongkong-Manila flight

[G.R. No. 46036. May 18, 1990.]

through its Cecille Baron, contacted the Manila Hotel

PHILIPPINE

AIR

LINES,

INC.

and

ROBERTO

ESPIRITU, petitioners, vs. COURT OF APPEALS,

JOSE PAGSIBIGAN and CHINA AIR LINES, LTD.,
respondents.

Lines, Ltd.

time was a sales and ticketing agent of defendant

China Air Lines. On June 6, 1968, PAL, through its
ticketing clerk defendant Roberto Espiritu, cut and
Hongkong-Manila flight. According to the plane ticket,
the plaintiff was booked on CAL CI Flight No. 812 to
depart from Manila for Taipei on June 10, 1968 at

Reyna,

Montecillo

&

Ongsiako

for

petitioners in G.R. No. 46036.

time of the flight as stated in his ticket, the plaintiff

arrived at the airport to check in for CI Flight No. 812.
Upon arriving at the airport, the plaintiff was informed

DECISION

that the plane he was supposed to take for Taipei had

left at 10:20 in the morning of that day. The PAL

REGALADO, J p:
These consolidated petitions seek the review of the
decision of respondent court in CA-G.R. No. 53023-R
entitled "Jose E. Pagsibigan, Plaintiff-Appellant, vs.
Air

1720 hours (5:20 p.m.), Exhibit A.

"On June 10, 1968, one hour before the scheduled

Syquia Law Offices for Jose Pagsibigan.

Philippine

branch of defendant Philippine Air Lines which at that

issued CAL Ticket No. 017991 for a Manila-Taipei-

Balgos & Perez Law Offices for petitioner China Air

Siguion

from the Transaire Travel Agency. The said agency,

Lines,

Defendants-Appellants;

Inc.

and

China

Roberto
Air

Espiritu,

Lines,

Ltd.,

employees

at

the

airport

made

appropriate

arrangements for the plaintiff to take PAL's flight to

Taipei the following day, June 11, 1968. The plaintiff
took said flight and arrived in Taipei around noontime
of the said date.

Defendant-Appellee," 1 the dispositive portion of which

"On July 8, 1968, the plaintiff, through counsel, made

declares:

formal demand on defendant PAL for moral damages in

"WHEREFORE,

except

for

modification

of

the

judgment in the sense that the award of P20,000.00 in

favor of the plaintiff shall be in the concept of nominal
damages instead of exemplary damages, and that
defendant China Air Lines, Ltd. shall likewise be liable
with its two co-defendants in a joint and solidary
capacity, the judgment appealed from is hereby
affirmed in all other respects, without costs." 2
The challenged decision of respondent court contains a
synthesis of the facts that spawned these cases and
the judgment of the court a quo which it affirmed with
modifications, thus: LLphil

not less than P125,000.00 for what the plaintiff

allegedly suffered as a result of his failure to take the
flight as stated in his plane ticket. (Exhibit E) After a
series of negotiations among the plaintiff, PAL and CAL
failed to reach an amicable settlement, the plaintiff
instituted this action in the Court of First Instance of
Rizal on September 22, 1969. In his complaint,
plaintiff prays for the recovery of P125,000.00 as moral
damages and P25,000.00 for and as attorney's fees.
The moral damages allegedly arose from the gross
negligence of defendant Roberto Espiritu in stating on
the plane ticket that the time of departure was 1720
hours, instead of 1020 hours which was the correct
time of departure in the revised summer schedule of

"On June 4, 1968, plaintiff Jose E. Pagsibigan, then

CAL. Plaintiff claims that by reason of his failure to

vice-president and general manager of Rentokil (Phils .)

take the plane, he suffered besmirched reputation,

Page 81 of 96
embarrassment, mental anguish, wounded feelings

not on CAL. A cross-claim was likewise asserted by

and sleepless nights, inasmuch as when he went to the

CAL against its co-defendant PAL.

airport,

he

was

accompanied

by

his

business

associates, close friends and relatives. He further

averred that his trip to Taipei was for the purpose of
conferring with a certain Peng Siong Lim, president of
the Union Taiwan Chemical Corporation, scheduled at
9:00 a.m. on June 11, 1968.

"After due trial, the Court a quo rendered judgment

laying the blame for the erroneous entry in the ticket
as to the time of departure to defendant Roberto
Espiritu, ticketing agent of defendant PAL, and that no
employee of CAL contributed to such erroneous entry.
It was further ruled that the plaintiff had no reason to

"Defendant Philippine Air Lines alleges in its answer

claim moral damages but may be entitled to recover

that the departure time indicated by Espiritu in the

exemplary damages. The dispositive portion of the

ticket was furnished and confirmed by the reservation

decision makes the following adjudication:

office of defendant China Air Lines. It further avers

that CAL had not informed PAL's Manila Hotel Branch
of the revised schedule of its flight, nor provided it with
revised timetable; that when the travel agency sought
to purchase the ticket for the plaintiff on CAL CI Flight
No. 812 for June 10, 1968, Espiritu who was then the
ticketing clerk on duty, checked with the reservation
office of CAL on the availability of space, the date and
the time of said flight; that CAL's Dory Chan informed
Espiritu that the departure time of Flight No. 812 on
June 10, 1968 was at 5:20 in the afternoon of said
date. PAL asserted a cross-claim against CAL for
attorney's fees and for reimbursement of whatever
amount the court may adjudge PAL to be liable to the
plaintiff. Defendant Espiritu adopted the defenses of
his co-defendant PAL.
"Defendant China Air Lines, for its part, disclaims
liability for the negligence and incompetence of the
employees of PAL. It avers that it had revised its
schedule since April 1, 1968, the same to be effective
on April 20, 1968, and the said revised schedule was
adopted only after proper petition with and approval of
the Civil Aeronautics Board of which all airlines,
including defendant PAL, were notified; that both
printed copies of the international timetable and of the

'WHEREFORE,

premises

considered,

judgment

is

hereby rendered sentencing the defendants Philippine

Air Lines, Inc. and Roberto Espiritu, to pay to plaintiff
Jose Pagsibigan jointly and severally, by way of
exemplary damages, the sum of Twenty Thousand
Pesos

(P20,000.00)

plus

Two

Thousand

Pesos

(P2,000.00) as reimbursement for attorney's fees and

the costs.
'The complaint is dismissed with respect to the
defendant China Air Lines, Ltd. The cross-claim filed
by defendant PAL and Espiritu against defendant CAL
as well as the cross-claim filed by the defendant CAL
against defendant PAL and Espiritu are also hereby
dismissed.' " 3
From said decision of the court below, all the parties,
except China Air Lines, Ltd. appealed to respondent
court which, however, sustained the ruling of the trial
court denying Pagsibigan's claim for moral damages. It
concluded that Roberto Espiritu did not act with
malice or in bad faith in making a wrong entry of the
time of departure on the ticket, and that the mistake
committed by Espiritu appears to be an honest one
done in good faith.

mimeographed notices of the official schedule and

Respondent

flight departure schedules were distributed to all its

exemplary damages for lack of legal basis. Nonetheless,

sales agents, including PAL; that after the effectivity of

as earlier noted, it awarded Pagsibigan P20,000.00 as

the new time schedules, PAL's Manila Hotel office had

nominal damages, under Article 2221 of the Civil Code,

been issuing and selling tickets based on the revised

for the vindication of a legal wrong committed against

time schedule; and that, assuming that the plaintiff is

him. cdphil

entitled to recover damages, the liability is on PAL and

court

also

ruled

out

the

claim

for

Page 82 of 96
As regards the liability of the parties, respondent court

negligence on its part for the act done by defendant

held:

Roberto Espiritu. (Emphasis supplied).

"There can be little question as to the liability of PAL

"The liability for the damage sustained by the plaintiff

and Espiritu for the damage caused to the plaintiff due

should, therefore, be borne by all of the defendants in

to the erroneous entry in the plane ticket made by the

a joint and solidary capacity (Art. 2194). The liability of

latter. They seek to justify the erroneous statement as

an employer under Art. 2180 is primary and direct. . . .

to the time of departure on the ground that such was

the time given by Dory Chan to Espiritu when the
latter called up for the reservation in favor of plaintiff.
Aside from the fact that Dory Chan had vigorously
disclaimed having given such information to Espiritu,
We are convinced that, as the trial court had found,
CAL had no share in the error committed by Espiritu
in indicating the time of departure of Flight No. 812.
PAL had shown through the testimony of Carmen
Ibazeta Gallaga, ticket representative of PAL at the
Manila Hotel Office, that they received circulars and
timetables of airlines in the PAL main office. It further

xxx

xxx

xxx

"It appearing that defendant CAL, as employer or

principal,

did

not

contribute

to

the

negligence

committed by defendants PAL and Roberto Espiritu, its

liability to the plaintiff could be passed on to said
defendants. Defendant CAL, however, did not take an
appeal and did not, therefore, take exception to the
dismissal of its cross-claim against defendants PAL and
Espiritu. This serves as an obstacle for a rendition of
judgment favorable to CAL on its said counterclaim." 4

appears that on two occasions, defendant PAL cut and

In its petition for review on certiorari in G.R. No. L-

issued tickets for CAL based on the new schedule even

45985, petitioner China Air Lines, Ltd. (CAL) relied on

before June 10, 1968. As a matter of fact, the other

the following grounds:

entries of time departures in the ticket issued to the

plaintiff are in accordance with the revised schedule,
and that the only error therein was with respect to the
departure from Manila on June 10, 1968.

CAL

derives

no

solace

nor

gains

an

advantage. It may not claim exemption from liability by

reason thereof. Espiritu was an employee of PAL and
whatever

negligence

was

committed

by

him

is

attributable to PAL. It is an admitted fact that PAL is

an authorized agent of CAL. In this relationship, the
responsibility of defendant PAL for the tortious act of
its agent or representative is inescapable. . . .
xxx

xxx

superior, however, the Civil Code permits the employer

to escape this liability upon proof of having observed
all the diligence of a good father of a family to prevent
the damage. We find the evidence of defendant CAL to
to

overcome

the

2.

Dismissal

of

the

cross-claim

of

petitioner

against the private respondents Philippine Air Lines,

Inc. and Roberto Espiritu will not prevent the release of
the petitioner from liability to the private respondent
Pagsibigan.
3.

The award of damages was unwarranted both

legally and factually. 5

(PAL)

its Art. 2180 . . . . Unlike in the doctrine of respondeat

insufficient

the former never participated in, ratified or authorized

On their part, petitioners Philippine Air Lines, Inc.

xxx

"A similar principle is recognized in our Civil Code in

be

A principal can not be held liable, much less

solidarily, for the negligence of the sub-agent, where

the latter's act or omission.

"However, in proving that the fault lied with Espiritu,

defendant

1.

presumption

of

and

Roberto

Espiritu

made

the

following

submissions in G.R. No L-46036, to wit:

1.

The respondent Court of Appeals erred in not

holding that respondent China Air Lines, Ltd., being

the principal, is solely liable to respondent Pagsibigan.

Page 83 of 96
2.

The respondent Court of Appeals erred in

awarding

respondent

Pagsibigan

the

sum

of

P20,000.00 as nominal damages. 6

perusal of the complaint of respondent Pagsibigan will

readily disclose that the allegations thereof clearly and
unmistakably make out a case for a quasi-delict in this

In G.R. No. L-45985, respondent Pagsibigan contends,

wise:

by way of refutation, that CAL,'s liability is based on

"4.

breach of contract of transportation which was the

of 1968, defendant China Air Lines Ltd. has been

proximate

error

operating regular scheduled flights to and from Manila,

committed by PAL and Espiritu; that even assuming

and has offered accommodations thereon through,

that CAL has no share in the negligence of PAL and

among others, defendant PAL as its authorized sales

Espiritu, the liability of CAL does not cease upon proof

agent and/or ticketing agent, such that China Airlines

that it exercised all the diligence of a good father of a

Ltd. is here impleaded as being the principal of

family

defendant PAL;

result

in

the

of

the

selection

negligence

and

and/or

supervision

of

its

employees. Traversing such contentions, CAL argues

that it can not be made liable under Article 2180 of the
Civil Code because of the absence of employeremployee relationship between it and PAL.

"5.

That at all pertinent times particularly in June

That at all pertinent times, particularly in June

of 1968, defendant Roberto Espiritu has been in the

employ of defendant PAL at its sales counter at the PAL
Manila Hotel branch office and is here impleaded as

On the other hand, in G.R. No. L-46036, respondent

defendant as being the proximate malfeasor in this

Pagsibigan claims that PAL is liable under Article 1909

cause of action;

of the said code which holds an agent responsible not

only for fraud but also for negligence which shall be
judged with more or less rigor by the courts, according
to

whether

the

agency

was

or

was

not

for

compensation. PAL, however, maintains that for lack of

privity with Pagsibigan, the suit for breach of contract
should have been directed against CAL. LibLex
What surfaces as a procedural maneuver taken by
respondent Pagsibigan in the course of the proceedings
in these cases has confused the real issues in the
controversy subject of both petitions before us.
Respondent Pagsibigan has opted to seek redress by
pursuing two remedies at the same time, that is, to
enforce the civil liability of CAL for breach of contract
and, likewise, to recover from PAL and Espiritu for tort
or culpa aquiliana. What he has overlooked is the
proscription against double recovery under Article
2177 of the Civil Code which, while not preventing
recourse to any appropriate remedy, prevents double
relief for a single wrong.
To avoid inequitable effects under such confluence of
remedies, the true nature of the action instituted by
respondent Pagsibigan must be determined. A careful

xxx
"12.

xxx

xxx

That plaintiff missed the initial Manila-Taipei

leg (CI Flight 812) on June 10, 1968, as set forth in his
ticket (Annex 'A') solely and exclusively by reason of
gross

incompetence

and

inexcusable

negligence

amounting to bad faith of defendant PAL acting,

through its sales representative, the defendant Roberto
Espiritu, of its Manila Hotel branch office in the
discharge of its duties as sales agent and/or ticketing
agent for defendant China Airlines Ltd. as principal.
"13.

That as a direct result of culpable incompetence

and negligence of defendant Roberto Espiritu as sales

representative of defendant PAL, plaintiff was unable to
attend to previously scheduled business commitments
in Taipei . . . resulting in direct and indirect prejudice
to plaintiff that

has yet to be fully assessed;"

(Emphasis supplied) 7
xxx

xxx

xxx

Had the intention of respondent Pagsibigan been to

maintain an action based on breach of contract of
carriage, he could have sued CAL alone considering
that PAL is not a real party to the contract. Moreover,

Page 84 of 96
in cases of such nature, the aggrieved party does not

theory at the time of the hearing before the trial court.

have to prove that the common carrier was at fault or

10

was negligent. All he has to prove is the existence of

the contract and the fact of its non-performance by the
carrier. 8

There is indeed no basis whatsoever to hold CAL liable

on a quasi-delict or culpa aquiliana. As hereinbefore
stated, the court a quo absolved CAL of any liability for

The records disclose that the trial court delved much

fault or negligence. This finding was shared by

into the issues of who was at fault, and its decision is

respondent court when it concluded that defendant

primarily anchored on its factual findings regarding the

CAL did not contribute to the negligence committed by

civil liability arising from culpa aquiliana of the erring

therein

party, to this effect:

Espiritu.

"Plaintiff said that the erroneous entry in his ticket

Respondent Pagsibigan insists that CAL was barred

which made it appear that his CAL flight of June 10,

from proving that it observed due diligence in the

1968 was to be at 5:20 in the afternoon was due to the

selection and supervision of its employees. This

fault or negligence of PAL's Roberto Espiritu, a co-

argument is obviously misplaced. CAL is not the

defendant herein, as well as the employees of the

employer of PAL or Espiritu. In Duavit vs. The Hon.

defendant CAL. In making CAL co-responsible, plaintiff

Court of Appeals, et al., 11 we have stressed the need

appears to rely on the doctrine that the principal is

of first establishing the existence of an employer-

responsible for the act of an agent done within the

employee relationship before an employer may be

scope of the agency.

vicariously liable under Article 2180 of the Civil Code.

"There is no proof extant that any of the employees of

With respect to PAL and Espiritu, they disclaim any

CAL had contributed to the erroneous entry in

liability on the theory that the former is merely an

plaintiff's CAL ticket for Taipei which placed his time of

agent of CAL and that the suit should have been

departure to 5:20 o'clock in the afternoon of June 10,

directed against CAL alone. There is no question that

1968. Only defendant Roberto Espiritu appears to be

the contractual relation between both air lines is one of

solely and exclusively responsible for such error and

agency. Suffice it to say, however, that in an action

therefor the conclusion becomes inevitable that CAL

premised

must be absolved from any blame because defendant

respondent Pagsibigan seeks recovery for the resulting

Roberto Espiritu who committed the error is not an

damages

employee or agent of the defendant CAL." 9

qualification, what is sought to be imposed is the direct

It,

therefore,

becomes

evident

that

respondent

Pagsibigan, having sensed that he can not hold CAL

defendants-appellants

on

the

from

employee's

both

PAL

PAL

and

negligence,

and

Espiritu

Roberto

whereby
without

and primary liability of PAL as an employer under said

Article 2180.

liable on a quasi-delict, decided on appeal to instead

When an injury is caused by the negligence of an

make a sinistral detour, so to speak, by claiming that

employee, there instantly arises a presumption of law

his action against CAL is based on a breach of contract

that there was negligence on the part of the employer

of carriage. cdrep

either in the selection of the employee or in the

We can not permit respondent Pagsibigan to change his

theory at this stage; it would be unfair to the adverse
party who would have no more opportunity to present
further evidence, material to the new theory, which it
could have done had it been aware earlier of the new

supervision

over

him

after

such

selection.

The

presumption, however, may be rebutted by a clear

showing on the part of the employer that it has
exercised the care and diligence of a good father of a
family in the selection and supervision of his employee.
12

Page 85 of 96
Hence, to escape solidary liability for the quasi-delict

however, can demand from Espiritu reimbursement of

committed by Espiritu, it is imperative that PAL must

the amount which it will have to pay the offended

adduce sufficient proof that it exercised such degree of

party's claim. 13

care. PAL failed to overcome the presumption. As found

by respondent court, CAL had revised its schedule of
flights since April 1, 1968; that after the Civil
Aeronautics Board had approved the revised schedule
of flights, PAL was duly informed thereof and, in fact,
PAL's Manila Hotel branch office had been issuing and
selling tickets based on the revised time schedule
before June 10, 1968.

On the issue of damages, we agree, except as to the

amount, that nominal damages may be awarded to
respondent Pagsibigan to vindicate the legal wrong
committed against him. It appearing that the wrong
committed

was

immediately

rectified

when

PAL

promptly booked him for the next morning's flight to

Taipei where he arrived before noon of June 11, 1968
and was able to attend his scheduled conference, and

PAL's main defense is that it is only an agent. As a

considering the concept and purpose of nominal

general proposition, an agent who duly acts as such is

damages, the award of P20,000.00 must accordingly be

not personally liable to third persons. However, there

reduced to an amount equal or at least commensurate

are admitted exceptions, as in this case where the

to the injury sustained.

agent is being sued for damages arising from a tort

committed by his employee.
The

respondent

court

WHEREFORE, the decision of respondent Court of

Appeals is MODIFIED accordingly. China Air Lines,

found

that

the

mistake

Ltd. is hereby absolved from liability. Philippine Air

committed by Espiritu was done in good faith. While

Lines, Inc. and Roberto Espiritu are declared jointly

there is no evidence that he acted with malice, we can

and severally liable to pay the sum of P10,000.00 by

not entirely condone his actuations. As an employee of

way of nominal damages, without prejudice to the right

PAL, the nature of his functions requires him to

of Philippine Air Lines, Inc. to recover from Roberto

observe for the protection of the interests of another

Espiritu reimbursement of the damages that it may

person that degree of care, precaution and vigilance

pay respondent Jose Pagsibigan.

which the circumstances justly demand. He committed

a clear neglect of duty.
Ergo, for his negligence, Espiritu is primarily liable to
respondent Pagsibigan under Article 2176 of the Civil
Code. For the failure of PAL to rebut the legal
presumption

of

negligence

in

the

selection

and

supervision of its employee, it is also primarily liable

under Article 2180 of the same code which explicitly
provides that employers shall be liable for the damages
caused by their employees and household helpers
acting within the scope of their assigned tasks, even

SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ.,
concur.
18.
EN BANC
[G.R. No. L-26810. August 31, 1970.]
ROSARIO SANTOS VDA. DE BONIFACIO, VIRGINIA
BONIFACIO,

ROSALINDA

industry.

BONIFACIO,

ZENAIDA

Under the aforesaid provision, all that is required is

BONIFACIO, JOVITO BONIFACIO, JR., CORAZON

though the former are not engaged in any business or

that the employee, by his negligence, committed a

quasi-delict which caused damage to another, and this
suffices to hold the employer primarily and solidarily
responsible for the tortious act of the employee. PAL,

BONIFACIO,
BONIFACIO,

ANDRES
ALBERTO

BONIFACIO,

BONIFACIO,

ROMEO

GENEROSO

BONIFACIO,
CONCEPCION,

JOSE
AGUSTIN

ANGELES and ELISA ANGELES, plaintiffs-appellees,

vs. B. L. T. BUS CO., INC., as Successors of LAGUNA

Page 86 of 96
TAYABAS BUS COMPANY and SERGIO DE LUNA,

court.The grant of interest in damage suits involving

defendants-appellants.

crimes and quasi-delicts is discretionary with the

Leandro Sevilla & Ramon C. Aquino for plaintiffs-

prayer for interest in the plaintiffs complaint. Judicial

appellees.

court. Interests may be awarded despite the lack of

ethics; Judge; Disqualification; Counsel was former

Domingo E. de Lara & Associates for defendantsappellants.

classmate of judge, not a ground for disqualification.

That one of the counsels in a case was a classmate of
the trial judge is not a legal ground for disqualification
of said judge. To allow it would unnecessarily burden
other trial judges to whom the case would be

Damages; Negligence; Duty of driver to be watchful of

transferred. Ultimately, confusion would result, if a

others using the same road.A driver should be

judge would be barred from sitting in a case whenever

especially watchful in anticipation of others who may

one of his former classmates appeared. Same; Same;

be using the highway; and his failure to keep a proper

Same; Bias not proved by close scrutiny of defense

lookout for persons and objects in the line to be

evidence.That the judge would question defense

traversed constitutes negligence. Evidence; Testimonial

witnesses more closely than those of the plaintiffs is

evidence; Must be credible in itself.Evidence to be

but natural, since defendants evidence varies from

believed, must not only proceed from the mouth of a

proof already on record. It is no proof of bias. APPEAL

credible witness, but it must be credible in itself.

from a judgment of the Court of First Instance of Rizal.

Damages; Negligence; Driver may assume that another

Makasiar, J.,

driver will return to his proper lane.A motorist who is

properly proceeding on his own side of the highway,
even after he sees an approaching motorist coming
toward him on the wrong side, is generally entitled to
assume that the other motorist will return to his
proper lane of traffic. Same; Same; Employers liability
for negligence of employees; Defense of due diligence in
supervision of employees will not prosper where
employer was lax in supervision and maintenance of
vehicles.The defense of due diligence of a good father
of a family will not help an employer where it is shown
that it was

guilty of inexcusable laxity in the

supervision of its driver and in the maintenance of its

vehicles. Evidence; Presentation of evidence; Party
presenting document must explain alteration during
presentation of document, not afterwards.The rule
requires that a party, producing a writing as genuine
but which is found altered after its execution, in a part
material to the question in dispute, should account for
the alteration, and, if he does that, he may give the
writing in evidence, but not otherwise. In other words,
a party presenting the writing should have accounted
for the alteration when he introduced the paper in
evidence, and not endeavor to explain the alteration
afterwards. Damages; Interests; Discretionary with

DECISION
REYES, J.B.L., J p:
Direct appeal to the Supreme Court (lodged prior to the
enactment

of

Republic

Act

No.

5440)

from

the

judgment of the Court of First Instance of Rizal (Pasig),

in its Civil Case No. 8275, sentencing the defendantsappellants, B. L. T. Bus Co., Inc., and its driver Sergio
de Luna, to pay jointly and severally to the plaintiffsappellees,

as

damages

arising

from

vehicular

accident, the total amount of P240,905.72, with

interest from the filing of the complaint.
Said Civil Case 8275 was filed pursuant to a
reservation made by the plaintiffs to file a civil action
separately from the criminal case instituted against the
B. L. T. B. bus driver Sergio de Luna in the Court of
First Instance of Laguna, for homicide and multiple
physical injuries and damage to property through
reckless imprudence, in connection with the same
vehicular accident. The Laguna Court had convicted de
Luna of the criminal charge, but the judgment, was
appealed and is pending in the Court of Appeals.

Page 87 of 96
Of the detailed findings of facts of the trial court, we

Mercedes car to swerve to the right shoulder of the

affirm the following as either non-controverted or

road facing Los Baos, as Alberto slammed his brakes,

preponderantly established by the evidence:

and the Mercedes car stopped on the right shoulder,

"Before February 27, 1964, Jovito Bonifacio, Sr.,

together with his wife (plaintiff Rosario Santos de
Bonifacio) and neighbor Agustin Angeles, used to bathe
in the Pansol hot springs at Los Baos, Laguna, twice
a week. They made such trips in his 1962 Mercedes
Benz car with plaintiff Alberto Concepcion as his
driver, a duly licensed driver since 1946.
"About 4:00 o'clock in the morning of February 27,
1964, the four of them left Barrio Sumilang, Pasig,
bound for the Pansol hot springs in Los Baos,
Laguna. Jovito, Sr. was seated beside his driver Alberto
Concepcion; while Agustin Angeles was seated on the
left side of the rear seat with plaintiff Rosario Santos
Vda. de Bonifacio to his right. Alberto Concepcion was
driving the car on the right lane facing Los Baos at
the rate of 30 miles per hour because the concrete road
was slippery as it was then drizzling. After going down
the overpass or bridge and negotiating the curve after
the said bridge at Barrio Landayan, San Pedro
Tunasan, Laguna, Alberto Concepcion saw a cargo

which is about two meters wide: while the LTB bus

made a complete U-turn and finally stopped on the left
lane of the concrete highway facing Los Baos or the
direction where it came from. It was filled with about
40 passengers then (see pictures Exhs. H, I, J, K, L, M,
and SS or 13 and 26, pp. 92-94, 391, 576, rec.). The
left front part of the Mercedes Benz was smashed (see
pictures Exhs. H and I, p. 92, rec.). The violent impact
threw Jovito Bonifacio, Sr. out of the car onto the right
shoulder of the road facing Los Baos, causing his
instantaneous death (Exhs. J. K. L and M, pp, 93-94,
rec.) while the other passengers, the driving [sic]
Alberto Concepcion, Mrs. Rosario Santos Vda. de
Bonifacio, and Agustin Angeles, lost consciousness and
were seriously injured. They recovered consciousness
in the Manila Sanitarium and Hospital in Pasay City to
where they were brought that same morning of the
incident." (Decision, Rec. on App., pp. 116-119)
As is usual in cases of this kind, three main issues
arise:

truck parked on the left portion of the concrete

(1)

highway without any parking lights. It was about 5:20

at fault?

a.m., still dark and raining. While he was about 15

meters from the said parked cargo truck, he saw for
the first time the oncoming LTB passenger bus No. 136
bearing 1964 plate No. PUB-1276, about 200 meters
away from him and about 185 meters behind the

(2)

Who of the drivers of the colliding vehicles was

Is the employer of the guilty driver responsible

for the fault of the latter?

(3)

Are the damages awarded reasonable?

parked cargo truck. Said bus was then driven at a very

Taking up the questions seriatim, we find that the

fast clip by the defendant Sergio de Luna. Because he

court below correctly held that the proximate cause of

was on his right lane, Alberto Concepcion continued on

the accident was the negligence of the L.T.B. bus

his way at the rate of 30 miles per hour. The parked

driver, de Luna, who failed to take the necessary

truck was entirely on the left lane and about one (1)

precautions demanded by the circumstances. He

meter from the center, of the concrete highway. His

admitted that when the mishap occurred, it was still

Mercedes Benz was passing alongside the parked truck

dark, and as it was raining, requisite prudence

and about 70 cm. from the center of the road. Just as

required that de Luna should be more careful than

he was about to pass beyond the parked truck, the

usual, and slacken his pace, for the wet highway could

oncoming LTB bus suddenly swerved to its left towards

be expected to be slippery. Even assuming that the

the right lane of the Mercedes Benz and collided with

presence of the parked cargo truck did constitute an

the Mercedes Benz. The place of collision was about 10

emergency, although it was in plain view, still, if de

meters from the parked truck. The impact caused the

Luna had not been driving unreasonably fast, his bus

Page 88 of 96
would not have skidded to the left and invaded the lane

Nor was his swerving to the left justifiable if he were in

of the oncoming car when he applied his brakes. His

control of his vehicle, since he had a clear view of the

having failed to see the parked cargo truck until he was

left lane and the oncoming Mercedes Benz from the

only 50 meters from it also justifies the inference that

driver's seat of the bus. Evidence, to be believed, must

he was inattentive to his responsibility as a driver. That

not only proceed from the mouth of a credible witness,

he did not know that anyone else was using the road is

but it must be credible in itself (People v. Baquiran, L-

no defense to his negligent operation of his vehicle,

20153, 29 June 1967, 20 SCRA 451).

since he should be especially watchful in anticipation

of others who may be using the highway; and his
failure to keep a proper lookout for persons and objects
in the line to be traversed constitutes negligence (7 Am.
Jur. 2d 901). Furthermore, in intruding into the lane
reserved

for

vehicles

coming

from

the

opposite

direction, it was incumbent upon the bus driver to

make sure that be could do so without danger.

that de Luna himself admitted, in the statement,

"A,"

taken

by

the

chief

of

police,

Mercedes car, Alberto Concepcion.

"A motorist who is properly proceeding on his own side
of the highway, even after he sees an approaching
motorist coming toward him on the wrong side, is
generally entitled to assume that the other motorist
will return to his proper lane of traffic, . . ." (8 Am. Jur.

Confirmatory of the foregoing considerations is the fact

Exhibit

There was no negligence on the part of the driver of the

and

subscribed and sworn to before the Mayor of San

Pedro, Laguna, at 8:00 o'clock in the same morning of
the accident, and while the facts were fresh in his
mind, that when he (de Luna) noticed the parked cargo
truck he slammed on his brakes and because of this,
the bus skidded to the left and hit the Mercedes Benz
car (". . . ang ginawa ko po ay nagpreno ako ng aking

2d 319)
That the L.T.B. bus was damaged near the front right
wheel and fender proves that the Mercedes was already
very close to the place of collision when it occurred, so
that the car driver had no chance to evade it. Nor did
said driver, Concepcion, possess any means of knowing
that the bus intruding into his line of travel was
skidding out of control, and could not draw back to its
proper lane.

sasakyang minamaneho at dahil po dito ay umislayd

Appellants

ang aking trak na papuntang kaliwa, subalit siya po

proceeding at reckless speed, but this charge rests on

namang pagdaan ng isang awtong Mercedes Benz na

nothing more substantial than an alleged statement by

aking nabunggo . . .")

Mrs. Bonifacio at the hospital that her driver was

The version at the trial of defendant-appellant Sergio

de Luna, and his witnesses, is that when the former
saw the parked cargo truck he slowed down, swerved a
little to the left, then completely stopped his vehicle;
that right then, the Mercedes Benz car hit his bus,
with such force that the bus turned to the direction
where it came from. Not only is this version belied by
de Luna's original and spontaneous statement to the
San Pedro Police, but it was infirmed by physical facts.
It is incredible, and contrary to common experience
and observation, that the bus, admittedly three (3)
times bigger than the car, and loaded with about
forty(40) passengers, could be turned around while
standing still by the impact of the much smaller car.

pretend

that

the

Mercedes

car

was

driving fast. The court below, in our opinion, correctly

discredited this evidence, for at the time it was
supposedly made, Mrs. Bonifacio was still in a state of
shock, with visitors barred by doctor's orders; and,
moreover, defense witness, ex-Cpl. Casantusan, did not
even take down or report the pretended statement,
notwithstanding its patent importance; there was no
corroboration thereof, and it was contradicted by the
car driver and by Mrs. Bonifacio herself. The rule, too
well-known to require citation of authorities, is that in
the absence of clear error (and none is shown in the
present instance) a trial court's estimate on the
credibility of witnesses, whose demeanor it had
unparalleled opportunity to observe, will not be
disturbed on appeal.

Page 89 of 96
At any rate, so long as the Mercedes car remained in

maintenance of its vehicles. Salient among these facts

its proper lane, its speed could not have been the

are the following:

proximate cause of the mishap.

(a)

Defense witness Cuevas asserted that the brake

On the second issue posed, the rule under Article 2180

lining of the bus was changed on 10 January 1964,

of the Civil Code of the Philippines makes an employer

over a month prior to the accident, although brake

liable for damage caused by his employee in the

linings last about 30 days only. The change in lining

discharge of his duties, unless the former adequately

was overdue but the appellant bus company tried to

proves having exercised due care in the selection and

hide this fact. Said the trial court:

supervision of the employee.

". . . The job sheet for the change of brake lining

Appellant company defends that it had observed all the

appears dated Jan. 10, 1964, in ink. There was an

diligence of a good father of a family to prevent

attempt to change it by crossing out "Jan." and super-

damage, conformably to the last paragraph of said

imposing the word "Feb." in pencil (see page 598, rec.).

Article 2180. It adduced evidence to show that in

There was an attempt to make "Feb. 10, 1964" as

hiring driver de Luna, the latter was tested on his

altered appear as the correct date instead of

proficiency as a driver; that he passed the test given by

January 10, 1964 by not arranging chronologically

the company's board of examiners, composed of the

the various orders and/or job sheets for said bus No.

office manager, the medical director, the chief of the

136 in said folder, Exh. 27, and by placing the said

legal department and the job superintendent, aside

small job sheet as page 11 of the said folder, Exhibit

from the orientation test given by experienced drivers

27, which has for its first page an order for bus No. 136

along the different lines of the company; that the

dated February 13, 1964 (p. 1 of Exhibit 27 or Exh.

company issued service manuals to its employees,

25-B, p. 290, rec.)." (Rec. on Appeal, p. 132.)

aside from memorandum circulars and duty orders to

govern the conduct of its drivers; that it assigns
inspectors interlinked with one another along the
different lines of the company to see to it that the rules
and regulations are complied with by all the drivers;
that it metes out penalties, such as fines, to erring
drivers; that it maintains shops at different stations
where several mechanics are assigned to see to it that
no truck leaves on the line without being thoroughly
checked; that it keeps a summary of service records of
its drivers to help in determining their efficiency and
fitness; that it conducts seminars on safe-driving and
prevention of accidents; that it had received an award
of appreciation in 1963 by the National Traffic Safety
Committee; that it used the best available brake lining
on Bus No. 136 and that said bus was completely
checked for road worthiness the day before the
accident.
Yet the evidence of appellant company also established
facts that demolished its very defense of "diligence of a
good father of a family," for it plainly shows inexcusable
laxity in the supervision of its driver and in the

By resorting to these documentary alterations, the

company indicated its awareness that its case is weak
or unfounded and from that may be inferred that its
case of appellant lacks truth and merit. 1 The claim
on appeal that the alteration in the writing was
innocent, or that the company should have been given
an opportunity to explain because it was caught
unaware that the court below would take the incident
against them as it did, is untenable. The rule requires
that a party, producing a writing as genuine but which
as found altered after its execution, in a part material
to the question in dispute, should account for the
alteration, and if "he do that, he may give the writing in
evidence, but not otherwise." (Section 32, Rule 132,
Revised Rules of Court.) In other words, the company
should have accounted for the alteration when it
introduced the job sheet in evidence, and not endeavor
to explain the alteration afterwards.
(b)

The record of driver de Luna shows that, on the

average, he was at the wheel and on the road for eleven

(11) hours and thirty-five (35) minutes per day, from

Page 90 of 96
Paete to Manila and back, and Paete to San Antonio

whether such rules and regulations are being complied

and back, starting before dawn until the evening. He

with, is not sufficient to exempt the defendant bus firm

has been in the Paete-Manila route for four (4) years

from liability arising from the negligence of its

(T.s.n., 22 November 1965, pages 38-39). He was paid

employees. Neither the establishment of maintenance

by the hour, so that the more time he drove, the

and repair shops, which do not regularly service its

greater compensation he received. That employer

buses, would suffice to demonstrate the diligence of

company thus abetted, obviously for the sake of greater

the employer in the selection and supervision of its

profit,

employees and in servicing and maintaining the buses

the

gruelling

schedule,

unmindful

of

the

harmful consequence that excessive working time

would

register

upon

the

driver's

health,

and,

particularly, on his reflexes. The pay-off came when

driver de Luna, because of his accumulated fatigue
and inattentiveness failed to notice seasonably the
presence of the parked cargo truck upon his lane of
traffic, impelling him to brake suddenly in an effort to
avoid hitting it, The braking made the bus slide and
encroach upon the other lane, resulting in its collision
with the oncoming automobile.
(c)

Sergio

de

Luna

had

repeatedly

violated

in all since 1951, and including a collision with a

carretela, the company took no more drastic action
him

other

than

repeated

warnings

and

imposing token fines, which on the whole amounts to

tolerance of the violations or laxity or negligence in the
enforcement of the company rules.
(d)

The

minor

errors

charged

against

the

appealed

decision do not suffice to overrule the findings of

negligence of both the driver and the company,
measured by the requirements of ordinary diligence.
Appellants' complaint in their brief, that the lower
court applied the law requiring carriers to observe
extraordinary diligence with respect to passengers, and
not ordinary diligence with respect to third parties as
in the present case, is without basis.

company rules. Despite his numerous infractions, 31

against

in good running condition."

On the question of damages, the trial court properly

took into account that the late Jovito Bonifacio, Sr.,
was already a successful businessman when his life
was cut short, at the age of 49, by the highway
accident. He was treasurer of Bonifacio Bros., Inc., a
firm owned by himself and his brother, and which is
engaged in the business of repairing motor vehicles.
The

assets

of

said

firm

in

1962

were

worth

On its bus involved in the accident (No. 136),

P1,059,754.53; it had 102 employees receiving a salary

the appellant company was also negligent. The bus was

of P1,800.00 or more, per annum; in 1963, its assets

last overhauled on 26 January 1963 but was usually

were worth P995,885.78 (Exhibits "KK-2" & "KK-3"). In

overhauled every six months; its overhauling therefore,

April, 1963, the deceased founded J. Bonifacio Bros.,

was overdue by six months. In addition, as heretofore

Inc., which also engaged in the same line of business,

observed, its brake linings were last changed on 10

with principal office at 267 P. Casal, Manila, and of

January 1964, but were usually changed every 30

which he was president at ,the time of his demise. The

days; the changing was therefore, overdue by one (1)

deceased had a net income of P33,738.62 and

month and seventeen (17) days at the time of the

P24,000.00 in 1962 and 1963, respectively.

mishap, and must have contributed to the driver's

lower court, therefore, fairly assessed that, had he lived

inability to control the skidding that led to the

to the age of 55, he would have earned a total net

collision.

income of P144,000.00. The six-year life expectancy

In the face of these plain instances of lax supervision,

the trial court has aptly remarked:
"The mere issuance of numerous rules and regulations,
without the corresponding periodic checks as to

2 The

allowed by the trial court is shorter than that shown by

insurance mortality tables, but the award was not
appealed.
Bonifacio's family incurred expenses of P13,764.05, as
follows; coffin P600.00; burial lot P90.00; cost of

Page 91 of 96
publication of death notices P720.00; tomb

accident and there is no indication as to when he

P4,850.00; food and gasoline during vigil P1,782.00;

would be able to drive again. If he would be

other expenses P500.00; compensation to a private

permanently incapacitated from driving again, he may,

investigator to look into the record of defendant driver

in the future, be able to find a different calling or

Sergio de Luna P222.05; and damage to Mercedes

gainful occupation. The award of P15,000.00, as

Benz car, not covered by insurance P5,000.00.

compensatory damages, is fair and reasonable.

Defendants-appellants

question

the

actual

and

Agustin Angeles suffered a broken right wrist, a crack

litigation expenses because they were paid by the firm

in the top left part of his head, sunken left eye, and a

J. Bonifacio Bros., Inc., arguing that said firm, not the

wound in the left cheek. He regained consciousness at

plaintiffs, has the right to claim the damages by virtue

the hospital only after 11 days from the time of the

of subrogation, per Articles 1302 and 1303 of the Civil

accident. He was confined for 18 days, and billed for

Code. This is a defense that, even if true (which we

P1,097.98. Due to the accident, his memory and vision

need not rule upon) should have been invoked in the

were impaired; he now walks with a cane; his bowel

court below, and its interposition comes too late on

movement and urination are now abnormal and

appeal. Moreover, such a technical defense deserves

irregular; he cannot freely move his right arm. He was

scant consideration, because the firm is a family

76 years old at the time of the accident, but despite his

corporation and a subrogation of parties will neither

age, he used to repair watches, with an suffrage

diminish the expenses nor exculpate defendants-

monthly income of P250.00. He cannot repair watches

appellants from liability therefor.

anymore. The lower court granted him compensatory

Plaintiff-appellee Rosario Santos Vda. de Bonifacio

damages for P3,000.00.

regained consciousness at the Manila Sanitarium and

For their shock, worry and anguish, the court below

Hospital. She suffered a lacerated wound in the frontal

awarded moral damages to the plaintiffs-members of

region of her head, contusion on the left side of her

the family of the deceased Jovito Bonifacio, Sr. in the

face, fracture of the distal portion of her left ulna and

sum of P20,000.00; to Rosaria Santos Vda. de

dislocation of the left femur. She was confined in the

Bonifacio,

hospital from 27 February 1964 to 15 March 1964. Her

Concepcion and Agustin Angeles, the sum of P5,000.00

hospital bills and compensation for special nurses

each. It also granted the family group and each of the

amounted to P1,658.48. During her confinement, she

aforenamed

failed to receive her salary, amounting to P608.00.

damages. The quantum of moral and exemplary

Driver Alberto Concepcion of the Mercedes Benz car,

sustained compound fractures; his right foot was in a
plaster cast for six (6) months and one (1) week; his left

the

sum

plaintiffs

of

P10,000.00;

P5,000.00,

as

to

Alberto

exemplary

damages thus awarded is not unconscionable, as

appellants aver, but are justified, considering all the
circumstances of the case.

leg was under traction and hanging for two (2) weeks,

Interest on the various damages at 6% per annum

his left hip-bone dislocated. He was confined in the

since the filing of the suit was also awarded, despite

hospital for one (1) month and four (4) days. Up to the

the lack of prayer for interest in the plaintiffs'

time the lower court rendered its decision on 30 July

complaint. The grant of interest is not necessarily

1966, Concepcion had to go in crutches to the

error, for under the Civil Code

hospital,

for

treatment.

His

medical

expenses

amounted to P1,777.21. As a driver of the deceased

Jovito Bonifacio, Sr., he was paid a weekly salary of
P50.00, with free meals, which remuneration may be
estimated to be P4,000.00 yearly (T.s.n., 22 October
1964, page 10) . He was 40 years old at the time of the

"ART. 2211.

In crimes and quasi-delicts, interest as a

part of the damages may, in a proper case, be

adjudicated in the discretion of the court."

Page 92 of 96
The findings and conclusions of negligence on the part

RAMOS;

of the defendants-appellants, and not on the part of

herself and as Guardian Ad Litem for the minors

the plaintiffs-appellees, show the lack of merit of the

last assignment of error about the denial of appellants'
counterclaim for the fees of their own counsel.

and

GOYENA

ZANAROSA-RAMOS,

for

JOBET, BANJO, DAVID and GRACE, all surnamed

RAMOS; FERNANDO ABCEDE, SR., for himself and
as Guardian Ad Litem for minor FERNANDO G.

Appellants stress that the trial court should be held

ABCEDE, JR.; MIGUEL JERNZ MAGO, as Guardian

disqualified because the counsel for plaintiffs-appellees

Ad

had been a classmate of the trial judge. Admittedly,

ANACLETA J. ZANAROSA, respondents.

this is not a legal ground for disqualification. To allow it

would unnecessarily burden other trial judges to whom
the case would be transferred. Ultimately, confusion
would result, for under the rule advocated, a judge
would be barred from sitting in a case whenever one of
his former classmates (and he could have many)

Litem

for

minor

ARLEEN

R.

MAGO,

and

Benito P. Fabie for petitioners.

Costante Banayos for private respondents.
SYLLABUS

appeared. Nor have the appellants successfully shown

here that bias distorted the judgment or conduct of the
challenged trier of the case. That he should question
defense witnesses more closely than those of the
plaintiffs is but natural, since defendants' evidence
varies from proof already on record. A desire to get at
the truth is no proof of bias or prejudice.

1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS;

REGULAR PERFORMANCE OF OFFICIAL DUTIES;
UNREBUTTED

IN

CASE

AT

BAR.

Petitioners

questioned the accuracy of the pictures and sketches

submitted by private respondents as evidence that the
Superlines bus encroached on the lane of the Scout

decision

car. According to them, the sketch made by the police

appealed from is hereby affirmed. Costs against the

investigator showing the skid marks of the bus, is

appellants.

inadmissible as evidence because it was prepared the

FINDING

NO

REVERSIBLE

ERROR,

the

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro,

Fernando, Teehankee and Villamor, JJ., concur.

day after the incident and the alleged "tell-tale" skid

marks and other details had already been obliterated
by the heavy downpour which lasted for at least an
hour after the accident. Likewise, they claim that the

Barredo and Makasiar, JJ., did not take part.

policeman who prepared the sketch was not the police

officer assigned to conduct the investigation. While it
may be accepted that some of the skid marks may have

19.

been erased by the "heavy downpour" on or about the

time of the accident, it remains a possibility that not all

FIRST DIVISION

skid marks were washed away. The strong presumption

[G.R. No. 96781. October 1, 1993.]

of regularity in the performance of official duty (Rule

131, Sec. 3(m), 1989 Rules on Evidence) erases, in the
absence of evidence to the contrary, any suspicions

EMILIANO

MANUEL

TRANSPORTATION

CO.,

and
INC.,

SUPERLINES
petitioners,

vs.

that the police investigator just invented the skid

marks indicated in his report.

HONORABLE COURT OF APPEALS, ERNESTO A.

2. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF

RAMOS substituted by Goyena Z. Ramos, Grace,

APPEALS; RULE; REASONS THEREFOR. This Court

David, Jobet, Portia and Banjo, all surnamed

has followed a well-entrenched principle that the

factual findings of the Court of Appeals are normally

Page 93 of 96
given great weight, more so when said findings tally

4. CIVIL LAW; MORAL DAMAGES; PROPER IN CASE

with the findings of the trial court and are supported

OF A CRIMINAL OFFENSE RESULTING IN PHYSICAL

by the evidence (Francisco v. Magbitang, 173 SCRA

INJURIES.

382

TML

awarded damages as excessive and unsubstantiated.

Garments, Inc. v. Zaragoza, 170 SCRA 563-564

The trial court's findings show otherwise, as can be

[1989]). The reason for this entrenched principle is

gleaned from the following excerpt of its decision:

given in Chemplex (Phils.), Inc., et al. v. Ramon C.

"Plaintiffs were able to prove their injuries and

Pamatian, et al., 57 SCRA 408 [1974], thus: "This

submitted

Court is not a trier of facts, and it is beyond its

treatment,

function to make its own findings of certain vital facts

disbursement, having a total amount of P12,204.86

different from those of the trial court, especially on the

which had admittedly (sic) shouldered by plaintiff

basis of the conflicting claims of the parties and

Ernesto Ramos. Considering the nature of the injuries

without the evidence being properly before it. For this

as shown by the respective Medical Certificates said

Court to make such factual conclusions is entirely

amount is very reasonable. It was also shown that the

unjustified - first, because if material facts are

Scout car is a total wreck, the value of which was

controverted, as in this case, and they are issues being

estimated to be P20,000.00 which may be the same

litigated before the lower court, the petition for

amount to put (sic) into a running condition. We

certiorari would not be in aid of the appellate

consider, likewise said amount reasonable taking into

jurisdiction of this Court; and, secondly, because it

account its brand (International Harvester Scout car).

preempts the primary function of the lower court,

The above mentioned damages are considered actual or

namely, to try the case on the merits, receive all the

compensatory (Par. 1 Art. 2197 in relation to Art. 2199,

evidence to be presented by the parties, and only then

New Civil Code). Evidence was also adduced showing

come to a definite decision, including either the

that as a result of the incident and the resultant

maintenance or the discharge of the preliminary

injuries there had been an impairment on the earning

injunction it has issued."

capacity of some of the plaintiffs (Fernando Abcede,

3.

[1989]);

New

COMMERCIAL

COLLISION;

ISSUE

Owners/Management

LAW;
OF

of

TRANSPORTATION;

UNLICENSED

DRIVER;

CANNOT EXEMPT THE PARTY'S AT FAULT FROM

LIABILITY. The evidence with respect to the issue
that Fernando Abcede, Jr. who was not duly licensed,
was the one driving the Scout car at the time of the
accident, could not simply exempt petitioners' liability
because they were the parties at fault for encroaching
on the Scout car's lane. Nevertheless, the witnesses
presented

by

petitioners

who

allegedly

saw

"the

younger Abcede pined behind the driver's wheels,"

testified on matters that transpired after the accident.
Discrediting this allegation, the Court of Appeals noted
that none of the aforesaid witnesses actually saw the
younger Abcede driving the car and that the younger
Abcede could have simply been thrown off his seat
toward the steering wheel.

Appellants,

evidence

to

likewise,

show

contested

expenses

hospitalization

and

for

the

their

incidental

Sr., Anacleta Zanarosa, Ernesto Ramos and Goyena

Ramos) which are recoverable pursuant to Article 2205
of the New Civil Code. Considering the nature of their
injuries

one

month

each

loss

of

income

seem

reasonable. Attorney's fees and expenses of litigation is

also proper. Since the act complained of falls under the
aegis of quasi-delict (culpa aquiliana), moral damages
is likewise available to plaintiffs pursuant to Article
2219 also of the New Civil Code." In addition, moral
damages may be recovered if they are the proximate
results of defendant's wrongful acts or omission as in
this case (Banson vs. CA, 175 SCRA 297 [1989]).
DECISION
QUIASON, J p:
This is an appeal by certiorari under Rule 45 of the
Revised Rules of Court from the decision of the Court
of Appeals in CA-G.R. CV No. 11780, and its
Resolution dated January 8, 1991, denying petitioners'

Page 94 of 96
motion for reconsideration. The decision subject of the

Emiliano Manuel, the driver of the bus, was prosecuted

appeal was an affirmation of the judgment of the Court

for

of First Instance of Camarines Norte, in Civil Case No.

imprudence in the Municipal Court of Sta. Elena,

3020 and whose dispositive portion states: cdphil

Camarines Norte. As he could not be found after he

"PREMISES

CONSIDERED,

judgment

is

hereby

rendered: (1) finding the defendant Emiliano Manuel

negligent, reckless and imprudent in the operation of

multiple

physical

injuries

through

reckless

ceased reporting for work a few days following the

incident, the private respondents filed the instant
action for damages based on quasi-delict.

Superlines Bus No. 406, which was the proximate

After trial, the court a quo rendered judgment against

cause of the injuries suffered by the plaintiffs and

petitioners and Perla Compania de Seguros, that

damage of the Scout Car in which they were riding; (2)

covered the insurance of the bus. The court ordered

ordering the said defendant, jointly and solidarily, with

them to pay, jointly and severally, the amount of

the defendant Superlines Bus Co., Inc. to pay plaintiffs

P49,954.86 in damages to respondents.

the amounts of P49,954.86, as itemized elsewhere in

this decision and the costs.
"It

appearing

that

the

On appeal, the Court of Appeals, affirmed the decision

of the trial court.

defendants

Superlines

Transportation Co., Inc. is insured with the defendant

Perla Compania de Seguros, which has admitted such
insurance, the latter is hereby ordered to pay the
former the amounts so stated up to the extent of its
insurance coverage" (Rollo, pp. 70-71).

In their appeal before us, petitioners contend that it

was Fernando Abcede, Jr., driver of the Scout car, who
was at fault. Besides, petitioners claim that Fernando
Abcede, Jr., who was only 19-years old at the time of
the incident, did not have a driver's license (Rollo, p.
10).

The operative facts culled from the decision of the

Court of Appeals are as follows:

Proof of this, according to petitioners, was that: LibLex

"Immediately after the accident, the bus conductor
Cesar Pica and passengers, including Maximino Jaro,

Private

respondents

were

passengers

of

an

alighted from the bus. A woman passenger of the IH

International Harvester Scout Car (Scout car) owned by

Scout car, Mrs. Ramos, was heard saying: 'Iyan na nga

respondent Ramos, which left Manila for Camarines

ba ang sinasabi ko, napakalakas ang loob,' referring to

Norte in the morning of December 27, 1977 with

young man, Fernando Abcede, Jr. who was the driver

respondent Fernando Abcede, Sr. as the driver of the

of the IH Scout car (tsn., p. 43, November 19, 1979;

vehicle. cdll

tsn, p. 23-A. February 7, 1980) . . ." (Rollo, p. 75).

There was a drizzle at about 4:10 P.M. when the Scout

Likewise, petitioners questioned the accuracy of the

car, which was negotiating the zigzag road in Bo.

pictures

Paraiso, Sta. Elena, Camarines Norte, was hit on its

respondents as evidence that the Superlines bus

left side by a bus. The bus was owned by petitioner

encroached on the lane of the Scout car. According to

Superlines Transportation, Co., Inc. and was driven by

them, the sketch made by the police investigator

petitioner Emiliano Manuel. Due to the impact, the

showing the skid marks of the bus, is inadmissible as

Scout car was thrown backwards against a protective

evidence because it was prepared the day after the

railing. Were it not for the railing, the Scout car would

incident and the alleged "tell-tale" skid marks and

have fallen into a deep ravine. All its ten occupants,

other details had already been obliterated by the heavy

which included four children, were injured, seven of

downpour which lasted for at least an hour after the

the victims sustained serious physical injuries (Rollo,

accident (Rollo, p. 87). Likewise, they claim that the

p. 28).

policeman who prepared the sketch was not the police

and

sketches

submitted

by

private

Page 95 of 96
officer assigned to conduct the investigation (Rollo, pp.

Petitioners' contention that the Scout car must have

88-89).

been moved backwards is not only a speculation but is

While it may be accepted that some of the skid marks

may have been erased by the "heavy downpour" on or
about the time of the accident, it remains a possibility
that not all skid marks were washed away. The strong
presumption of regularity in the performance of official
duty (Rule 131, Sec. 3(m), 1989 Rules on Evidence)
erases, in the absence of evidence to the contrary, any
suspicions that the police investigator just invented the
skid marks indicated in his report. cdll
Granting, however, that the skid marks in the
questioned sketch were inaccurate, nonetheless, the
finding of the Court of Appeals that the collision took
place within the lane of the Scout car was supported
by other conclusive evidence. "Indeed, a trail of broken
glass which was scattered along the car's side of the
road, whereas the bus lane was entirely clear of debris

contrary to human experience. There was no reason to

move it backwards against the guard railing. If the
purpose was to clear the road, all that was done was to
leave it where it was at the time of the collision, which
was well inside its assigned lane. Besides, even
petitioners accept the fact that when the police arrived
at the scene of the accident, they found no one thereat
(Rollo, p. 13). This further weakens the possibility that
some persons moved the Scout car to rest on the guard
railing.
The evidence with respect to the issue that Fernando
Abcede, Jr. who was not duly licensed, was the one
driving the Scout car at the time of the accident, could
not simply exempt petitioners' liability because they
were the parties at fault for encroaching on the Scout
car's lane (Rollo, pp. 29-30).

(Exhibit "L-1", p. 34, Records, pp. 56-65; TSN, Session

Nevertheless, the witnesses presented by petitioners

of March 14, 1979)" (Rollo, p. 31).

who allegedly saw "the younger Abcede pinned behind

Furthermore, the fact that the Scout car was found

after the impact at rest against the guard railing shows
that it must have been hit and thrown backwards by
the bus (Rollo, p. 103). The physical evidence do not
show that the Superlines Bus while travelling at high
speed, usurped a portion of the lane occupied by the
Scout car before hitting it on its left side. On collision,

the

driver's

transpired

wheels,"

after

the

testified

on

accident.

matters

that

Discrediting

this

allegation, the Court of Appeals noted that none of the

aforesaid witnesses actually saw the younger Abcede
driving the car and that the younger Abcede could have
simply been thrown off his seat toward the steering
wheel (Rollo, p. 29). LexLib

the impact due to the force exerted by a heavier and

Be that as it may, this Court has followed a well-

bigger passenger bus on the smaller and lighter Scout

entrenched principle that the factual findings of the

car, heavily damaged the latter and threw it against the

Court of Appeals are normally given great weight, more

guard railing.

so when said findings tally with the findings of the trial

court and are supported by the evidence (Francisco v.
Magbitang,

173

Owners/Management

SCRA
of

382

TML

[1989]);

Garments,

New
Inc.

v.

Zaragoza, 170 SCRA 563-564 [1989]).

The reason for this entrenched principle is given in
Chemplex (Phils.), Inc., et al. v. Ramon C. Pamatian, et
al, 57 SCRA 408 [1974], thus:
"This Court is not a trier of facts, and it is beyond its
function to make its own findings of certain vital facts
different from those of the trial court, especially on the

Page 96 of 96
basis of the conflicting claims of the parties and

condition.

without the evidence being properly before it. For this

reasonable taking into account its brand (International

Court to make such factual conclusions is entirely

Harvester Scout car). The above mentioned damages

unjustified first, because if material facts are

are considered actual or compensatory (Par. 1 Art.

controverted, as in this case, and they are issues being

2197 in relation to Art. 2199, New Civil Code).

litigated before the lower court, the petition for

Evidence was also adduced showing that as a result of

certiorari would not be in aid of the appellate

the incident and the resultant injuries there had been

jurisdiction of this Court; and, secondly, because it

an impairment on the earning capacity of some of the

preempts the primary function of the lower court,

plaintiffs (Fernando Abcede, Sr., Anacleta Zanarosa,

namely, to try the case on the merits, receive all the

Ernesto

evidence to be presented by the parties, and only then

recoverable pursuant to Article 2205 of the New Civil

come to a definite decision, including either the

Code. Considering the nature of their injuries one

maintenance or the discharge of the preliminary

month each loss of income seem reasonable. Attorney's

injunction it has issued." LLpr

fees and expenses of litigation is also proper. Since the

Appellants, likewise, contested the awarded damages

as excessive and unsubstantiated. The trial court's
findings show otherwise, as can be gleaned from the
following excerpt of its decision:
"Plaintiffs were able to prove their injuries and
submitted

evidence

to

show

expenses

for

their

treatment, hospitalization and incidental disbursement

(Exhs. AA to HH and their submarkings), having a total

We

consider,

Ramos

and

likewise

Goyena

said

Ramos)

amount

which

are

act complained of falls under the aegis of quasi-delict

(culpa aquiliana), moral damages is likewise available
to plaintiffs pursuant to Article 2219 also of the New
Civil Code" (Rollo, pp. 113-114). cdll
In addition, moral damages may be recovered if they
are the proximate results of defendant's wrongful acts
or omission as in this case (Banson vs. CA, 175 SCRA
297 [1989]).

amount of P12,204.86 which had admittedly (sic)

WHEREFORE,

shouldered by plaintiff Ernesto Ramos. Considering

Decision of the Court of Appeals is AFFIRMED, with

the nature of the injuries as shown by the respective

costs against petitioners.

Medical

Certificates

(Exhs.

to

and

their

submarkings) said amount is very reasonable. It was

also shown that the Scout car is a total wreck, the
value of which was estimated to be P20,000.00 which
may be the same amount to put (sic) into a running

the

petition

is

DENIED

SO ORDERED.
Cruz, Davide, Jr. and Bellosillo, JJ ., concur.
Grio-Aquino, J ., is on leave.

and

the