G.R. No.

122039 May 31, 2000

VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.

MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31,
1991, reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and
awarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action for
breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a
college freshman majoring in Physical Education at the Siliman University, took a passenger jeepney
owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of the
door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As
she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was
doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left
rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the "distal
third of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the
fracture, long leg circular casting, and case wedging were done under sedation. Her confinement in
the hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr. Danilo V.
Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three months and
would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the
contract of carriage by the former in failing to exercise the diligence required of him as a common
carrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the owner of
the Isuzu truck.
The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of
liability, holding that it was the driver of the Isuzu truck who was responsible for the accident. It took
cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasidelict, in which Branch 37 of the same court held Salva and his driver Verena jointly liable to Calalas
for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that
Sunga's cause of action was based on a contract of carriage, not quasi-delict, and that the common
carrier failed to exercise the diligence required under the Civil Code. The appellate court dismissed the
third-party complaint against Salva and adjudged Calalas liable for damages to Sunga. The dispositive
portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and
another one is entered ordering defendant-appellee Vicente Calalas to pay plaintiffappellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of
Verena was the proximate cause of the accident negates his liability and that to rule otherwise would
be to make the common carrier an insurer of the safety of its passengers. He contends that the
bumping of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner further assails the
award of moral damages to Sunga on the ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the
owner of the truck liable for quasi-delict ignores the fact that she was never a party to that case and,
therefore, the principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No.
3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to
petitioner's jeepney. On the other hand, the issue in this case is whether petitioner is liable on his
contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual,
has as its source the negligence of the tortfeasor. Thesecond, breach of contract or culpa contractual,
is premised upon the negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the
basis of the action, whereas in breach of contract, the action can be prosecuted merely by proving the
existence of the contract and the fact that the obligor, in this case the common carrier, failed to
transport his passenger safely to his destination. 2 In case of death or injuries to passengers, Art. 1756
of the Civil Code provides that common carriers are presumed to have been at fault or to have acted
negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and
1755 of the Code. This provision necessarily shifts to the common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his
driver Verena liable for the damage to petitioner's jeepney, should be binding on Sunga. It is
immaterial that the proximate cause of the collision between the jeepney and the truck was the
negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for quasidelict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a
person where there is no relation between him and another party. In such a case, the obligation is
created by law itself. But, where there is a pre-existing contractual relation between the parties, it is
the parties themselves who create the obligation, and the function of the law is merely to regulate the
relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the
Civil Code are those respecting the diligence required of common carriers with regard to the safety of
passengers as well as the presumption of negligence in cases of death or injury to passengers. It
provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and
for the safety of the passengers transported by them, according to all the circumstances
of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in
articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence for the
safety of the passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of very cautious persons, with
due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed
to have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence at once arose,
and it became the duty of petitioner to prove that he had to observe extraordinary diligence in the
care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide,
using the utmost diligence of very cautious persons, with due regard for all the circumstances" as
required by Art. 1755? We do not think so. Several factors militate against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being
exposed about two meters from the broad shoulders of the highway, and facing the middle of the
highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land
Transportation and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. No person shall drive his motor vehicle in such a
manner as to obstruct or impede the passage of any vehicle, nor, while discharging or
taking on passengers or loading or unloading freight, obstruct the free passage of other
vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating
capacity of the jeepney, a violation of 32(a) of the same law. It provides:
Exceeding registered capacity. No person operating any motor vehicle shall allow
more passengers or more freight or cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which
the other passengers were exposed. Therefore, not only was petitioner unable to overcome the
presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension
seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many
victims of the tragedies in our seas should not be compensated merely because those passengers
assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioner's
contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito.
A caso fortuito is an event which could not be foreseen, or which, though foreseen, was
inevitable.3 This requires that the following requirements be present: (a) the cause of the breach is
independent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is such
as to render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the debtor
did
not
take
part
in
causing
the
injury
to
the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body protruding
two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is excessive and without
basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college student in that
school year 1989-1990 at the Silliman University, majoring in Physical Education.
Because of the injury, she was not able to enroll in the second semester of that school
year. She testified that she had no more intention of continuing with her schooling,
because she could not walk and decided not to pursue her degree, major in Physical
Education "because of my leg which has a defect already."
Plaintiff-appellant likewise testified that even while she was under confinement, she cried
in pain because of her injured left foot. As a result of her injury, the Orthopedic Surgeon

also certified that she has "residual bowing of the fracture side." She likewise decided
not to further pursue Physical Education as her major subject, because "my left leg . . .
has a defect already."
Those are her physical pains and moral sufferings, the inevitable bedfellows of the
injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled to recover
moral damages in the sum of P50,000.00, which is fair, just and reasonable.
As a general rule, moral damages are not recoverable in actions for damages predicated on a breach
of contract for it is not one of the items enumerated under Art. 2219 of the Civil Code. 5 As an
exception, such damages are recoverable: (1) in cases in which the mishap results in the death of a
passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases
in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220. 6
In this case, there is no legal basis for awarding moral damages since there was no factual finding by
the appellate court that petitioner acted in bad faith in the performance of the contract of carriage.
Sunga's contention that petitioner's admission in open court that the driver of the jeepney failed to
assist her in going to a nearby hospital cannot be construed as an admission of bad faith. The fact
that it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner
was utterly indifferent to the plight of his injured passenger. If at all, it is merely implied recognition
by Verena that he was the one at fault for the accident.
WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated
September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral damages is
DELETED.
SO ORDERED.
Bellosillo and Buena, JJ., concur.
Quisumbing and De Leon, Jr., JJ., are on leave.
[G.R. No. 130003. October 20, 2004]
JONAS
AONUEVO, petitioner
vs.
VILLAGRACIA, respondent

HON.

COURT

OF

APPEALS

and

JEROME

DECISION
TINGA, J.:
The bicycle provides considerable speed and freedom of movement to the rider. It derives a
certain charm from being unencumbered by any enclosure, affording the cyclist the perception of
relative liberty. It also carries some obvious risks on the part of the user and has become the subject
of regulation, if not by the government, then by parental proscription.
The present petition seeks to bar recovery by an injured cyclist of damages from the driver of the
car which had struck him. The argument is hinged on the cyclists failure to install safety devices on
his bicycle. However, the lower courts agreed that the motorist himself caused the collision with his
own negligence. The facts are deceptively simple, but the resolution entails thorough consideration of
fundamental precepts on negligence.
The present petition raises little issue with the factual findings of the Regional Trial Court (RTC),
Branch 160, of Pasig City, as affirmed by the Court of Appeals. Both courts adjudged petitioner, Jonas
Aonuevo ( Aonuevo ), liable for the damages for the injuries sustained by the cyclist, Jerome
Villagracia (Villagracia). Instead, the petition hinges on a sole legal question, characterized as novel
by the petitioner: whether Article 2185 of the New Civil Code, which presumes the driver of a motor

vehicle negligent if he was violating a traffic regulation at the time of the mishap, should apply by
analogy to non-motorized vehicles.[1]
As found by the RTC, and affirmed by the Court of Appeals, the accident in question occurred on 8
February 1989, at around nine in the evening, at the intersection of Boni Avenue and Barangka Drive
in Mandaluyong (now a city). Villagracia was traveling along Boni Avenue on his bicycle, while
Aonuevo, traversing the opposite lane was driving his Lancer car with plate number PJJ 359. The car
was owned by Procter and Gamble Inc., the employer of Aonuevos brother, Jonathan. Aonuevo was in
the course of making a left turn towards Libertad Street when the collision occurred. Villagracia
sustained serious injuries as a result, which necessitated his hospitalization several times in 1989, and
forced him to undergo four (4) operations.
On 26 October 1989, Villagracia instituted an action for damages against Procter and Gamble
Phils., Inc. and Aonuevo before the RTC. [2] He had also filed a criminal complaint against Aonuevo
before the Metropolitan Trial Court of Mandaluyong, but the latter was subsequently acquitted of the
criminal charge.[3] Trial on the civil action ensued, and in a Decision dated 9 March 1990, the RTC
rendered judgment against Procter and Gamble and Aonuevo, ordering them to pay Villagracia the
amounts of One Hundred Fifty Thousand Pesos (P150, 000.00). for actual damages, Ten Thousand
Pesos (P10,000.00) for moral damages, and Twenty Thousand Pesos (P20,000.00) for attorneys fees,
as well as legal costs.[4] Both defendants appealed to the Court of Appeals.
In a Decision[5] dated 8 May 1997, the Court of Appeals Fourth Division affirmed the RTC Decision
in toto[6]. After the Court of Appeals denied theMotion for Reconsideration in a Resolution[7] dated 22
July 1997, Procter and Gamble and Aonuevo filed their respective petitions for review with this Court.
Procter and Gambles petition was denied by this Court in a Resolution dated 24 November 1997.
Aonuevos petition,[8] on the other hand, was given due course,[9] and is the subject of this Decision.
In arriving at the assailed Decision, the Court of Appeals affirmed the factual findings of the RTC.
Among them: that it was Aonuevos vehicle which had struck Villagracia; [10] that Aonuevos vehicle had
actually hit Villagracias left mid-thigh, thus causing a comminuted fracture; [11] that as testified by
eyewitness Alfredo Sorsano, witness for Villagracia, Aonuevo was umaarangkada, or speeding as he
made the left turn into Libertad; [12]that considering Aonuevos claim that a passenger jeepney was
obstructing his path as he made the turn. Aonuevo had enough warning to control his speed; [13] and
that Aonuevo failed to exercise the ordinary precaution, care and diligence required of him in order
that the accident could have been avoided. [14] Notably, Aonuevo, in his current petition, does not
dispute the findings of tortious conduct on his part made by the lower courts, hinging his appeal
instead on the alleged negligence of Villagracia. Aonuevo proffers no exculpatory version of facts on
his part, nor does he dispute the conclusions made by the RTC and the Court of Appeals. Accordingly,
the Court, which is not a trier of facts, [15] is not compelled to review the factual findings of the lower
courts, which following jurisprudence have to be received with respect and are in fact generally
binding.[16]
Notwithstanding, the present petition presents interesting questions for resolution. Aonuevos
arguments are especially fixated on a particular question of law: whether Article 2185 of the New Civil
Code should apply by analogy to non-motorized vehicles.[17] In the same vein, Aonuevo insists that
Villagracias own fault and negligence serves to absolve the former of any liability for damages.
Its is easy to discern why Aonuevo chooses to employ this line of argument. Aonuevo points out
that Villagracias bicycle had no safety gadgets such as a horn or bell, or headlights, as invoked by a
1948 municipal ordinance.[18] Nor was it duly registered with the Office of the Municipal Treasurer, as
required by the same ordinance. Finally, as admitted by Villagracia, his bicycle did not have foot
brakes.[19] Before this Court, Villagracia does not dispute these allegations, which he admitted during
the trial, but directs our attention instead to the findings of Aonuevos own negligence. [20]Villagracia
also contends that, assuming there was contributory negligence on his part, such would not exonerate
Aonuevo from payment of damages. The Court of Appeals likewise acknowledged the lack of safety

gadgets on Villagracias bicycle, but characterized the contention as off-tangent and insufficient to
obviate the fact that it was Aonuevos own negligence that caused the accident. [21]
Aonuevo claims that Villagracia violated traffic regulations when he failed to register his bicycle or
install safety gadgets thereon. He posits that Article 2185 of the New Civil Code applies by analogy.
The provision reads:
Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap he was violating any traffic regulation.
The provision was introduced for the first time in this jurisdiction with the adoption in 1950 of the
New Civil Code.[22] Its applicability is expressly qualified to motor vehicles only, and there is no ground
to presume that the law intended a broader coverage.
Still, Aonuevo hypothesizes that Article 2185 should apply by analogy to all types of vehicles [23].
He points out that modern-day travel is more complex now than when the Code was enacted, the
number and types of vehicles now in use far more numerous than as of then. He even suggests that
at the time of the enactment of the Code, the legislators must have seen that only motor vehicles
were of such public concern that they had to be specifically mentioned, yet today, the interaction of
vehicles of all types and nature has inescapably become matter of public concern so as to expand the
application of the law to be more responsive to the times. [24]
What Aonuevo seeks is for the Court to amend the explicit command of the legislature, as
embodied in Article 2185, a task beyond the pale of judicial power. The Court interprets, and not
creates, the law. However, since the Court is being asked to consider the matter, it might as well
examine whether Article 2185 could be interpreted to include non-motorized vehicles.
At the time Article 2185 was formulated, there existed a whole array of non-motorized vehicles
ranging from human-powered contraptions on wheels such as bicycles, scooters, and animal-drawn
carts such as calesas and carromata. These modes of transport were even more prevalent on the
roads of the 1940s and 1950s than they are today, yet the framers of the New Civil Code chose then
to exclude these alternative modes from the scope of Article 2185 with the use of the term motorized
vehicles. If Aonuevo seriously contends that the application of Article 2185 be expanded due to the
greater interaction today of all types of vehicles, such argument contradicts historical experience. The
ratio of motorized vehicles as to non-motorized vehicles, as it stood in 1950, was significantly lower
than as it stands today. This will be certainly affirmed by statistical data, assuming such has been
compiled, much less confirmed by persons over sixty. Aonuevos characterization of a vibrant intraroad dynamic between motorized and non-motorized vehicles is more apropos to the past than to the
present.
There is a fundamental flaw in Aonuevos analysis of Art. 2185, as applicable today. He premises
that the need for the distinction between motorized and non-motorized vehicles arises from the
relative mass of number of these vehicles. The more pertinent basis for the segregate classification is
the difference in type of these vehicles. A motorized vehicle operates by reason of a motor engine
unlike a non-motorized vehicle, which runs as a result of a direct exertion by man or beast of burden
of direct physical force. A motorized vehicle, unimpeded by the limitations in physical exertion. is
capable of greater speeds and acceleration than non-motorized vehicles. At the same time, motorized
vehicles are more capable in inflicting greater injury or damage in the event of an accident or
collision. This is due to a combination of factors peculiar to the motor vehicle, such as the greater
speed, its relative greater bulk of mass, and greater combustability due to the fuels that they use.
There long has been judicial recognition of the peculiar dangers posed by the motor vehicle. As far
back as 1912, in the U.S. v. Juanillo[25], the Court has recognized that an automobile is capable of
great speed, greater than that of ordinary vehicles hauled by animals, and beyond doubt it is highly
dangerous when used on country roads, putting to great hazard the safety and lives of the mass of
the people who travel on such roads.[26] In the same case, the Court emphasized:

A driver of an automobile, under such circumstances, is required to use a greater degree of care than
drivers of animals, for the reason that the machine is capable of greater destruction, and furthermore,
it is absolutely under the power and control of the driver; whereas, a horse or other animal can and
does to some extent aid in averting an accident. It is not pleasant to be obliged to slow down
automobiles to accommodate persons riding, driving, or walking. It is probably more agreeable to
send the machine along and let the horse or person get out of the way in the best manner possible;
but it is well to understand, if this course is adopted and an accident occurs, that the automobile
driver will be called upon to account for his acts. An automobile driver must at all times use all the
care and caution which a careful and prudent driver would have exercised under the circumstances. [27]
American jurisprudence has had occasion to explicitly rule on the relationship between the
motorist and the cyclist. Motorists are required to exercise ordinary or reasonable care to avoid
collision with bicyclists.[28] While the duty of using ordinary care falls alike on the motorist and the
rider or driver of a bicycle, it is obvious, for reasons growing out of the inherent differences in the two
vehicles, that more is required from the former to fully discharge the duty than from the latter.[29]
The Code Commission was cognizant of the difference in the natures and attached responsibilities
of motorized and non-motorized vehicles. Art. 2185 was not formulated to compel or ensure
obeisance by all to traffic rules and regulations. If such were indeed the evil sought to be remedied or
guarded against, then the framers of the Code would have expanded the provision to include nonmotorized vehicles or for that matter, pedestrians. Yet, that was not the case; thus the need arises to
ascertain the peculiarities attaching to a motorized vehicle within the dynamics of road travel. The fact
that there has long existed a higher degree of diligence and care imposed on motorized vehicles,
arising from the special nature of motor vehicle, leads to the inescapable conclusion that the
qualification under Article 2185 exists precisely to recognize such higher standard. Simply put, the
standards applicable to motor vehicle are not on equal footing with other types of vehicles.
Thus, we cannot sustain the contention that Art. 2185 should apply to non-motorized vehicles,
even if by analogy. There is factual and legal basis that necessitates the distinction under Art. 2185,
and to adopt Aonuevos thesis would unwisely obviate this distinction.
Even if the legal presumption under Article 2185 should not apply to Villagracia, this should not
preclude any possible finding of negligence on his part. While the legal argument as formulated by
Aonuevo is erroneous, his core contention that Villagracia was negligent for failure to comply with
traffic regulations warrants serious consideration, especially since the imputed negligent acts were
admitted by Villagracia himself.
The Civil Code characterizes negligence as the omission of that diligence which is required by the
nature of the obligation and corresponds with the circumstances of the persons, of the time and of the
place.[30] However, the existence of negligence in a given case is not determined by the personal
judgment of the actor in a given situation, but rather, it is the law which determines what would be
reckless or negligent.[31]
Aonuevo, asserts that Villagracia was negligent as the latter had transgressed a municipal
ordinance requiring the registration of bicycles and the installation of safety devices thereon. This view
finds some support if anchored on the long standing principle of negligence per se.
The generally accepted view is that the violation of a statutory duty constitutes negligence,
negligence as a matter of law, or negligence per se.[32]In Teague vs. Fernandez,[33] the Court cited
with approval American authorities elucidating on the rule:
The mere fact of violation of a statute is not sufficient basis for an inference that such violation was
the proximate cause of the injury complained. However, if the very injury has happened which was
intended to be prevented by the statute, it has been held that violation of the statute will be deemed
to be the proximate cause of the injury. (65 C.J.S. 1156)

The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as
a matter of law, or, according to the decisions on the question, negligence per se, for the reason that
non-observance of what the legislature has prescribed as a suitable precaution is failure to observe
that care which an ordinarily prudent man would observe, and, when the state regards certain acts as
so liable to injure others as to justify their absolute prohibition, doing the forbidden act is a breach of
duty with respect to those who may be injured thereby; or, as it has been otherwise expressed, when
the standard of care is fixed by law, failure to conform to such standard is negligence, negligence per
se or negligence in and of itself, in the absence of a legal excuse. According to this view it is
immaterial, where a statute has been violated, whether the act or omission constituting such violation
would have been regarded as negligence in the absence of any statute on the subject or whether
there was, as a matter of fact, any reason to anticipate that injury would result from such violation. x
x x. (65 C.J.S. pp.623-628)
But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding
the speed limit, for example, we do not inquire whether his prohibited conduct was unreasonably
dangerous. It is enough that it was prohibited. Violation of an ordinance intended to promote safety is
negligence. If by creating the hazard which the ordinance was intended to avoid it brings about the
harm which the ordinance was intended to prevent, it is a legal cause of the harm. This comes only to
saying that in such circumstances the law has no reason to ignore the causal relation which obviously
exists in fact. The law has excellent reason to recognize it, since it is the very relation which the
makers of the ordinance anticipated. This court has applied these principles to speed limits and other
regulations of the manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).
x x x However, the fact that other happenings causing or contributing toward an injury intervened
between the violation of a statute or ordinance and the injury does not necessarily make the result so
remote that no action can be maintained. The test is to be found not in the number of intervening
events or agents, but in their character and in the natural and probable connection between the
wrong done and the injurious consequence. The general principle is that the violation of a statute or
ordinance is not rendered remote as the cause of an injury by the intervention of another agency if
the occurrence of the accident, in the manner in which it happened, was the very thing which the
statute or ordinance was intended to prevent. (38 Am Jur 841) [34]
In Teague, the owner of a vocational school stricken by a fire resulting in fatalities was found
negligent, base on her failure to provide adequate fire exits in contravention of a Manila city
ordinance.[35] In F.F. Cruz and Co., Inc. v. Court of Appeals[36], the failure of the petitioner to construct
a firewall in accordance with city ordinances sufficed to support a finding of negligence. [37] In Cipriano
v. Court of Appeals, [38]the Court found that the failure of the petitioner to register and insure his auto
rustproofing shop in accordance with the statute constituted negligence per se, thus holding him liable
for the damages for the destruction by fire of a customers vehicle garaged therein.
Should the doctrine of negligence per se apply to Villagracia, resulting from his violation of an
ordinance? It cannot be denied that the statutory purpose for requiring bicycles to be equipped with
headlights or horns is to promote road safety and to minimize the occurrence of road accidents
involving bicycles. At face value, Villagracias mishap was precisely the danger sought to be guarded
against by the ordinance he violated. Aonuevo argues that Villagracias violation should bar the latters
recovery of damages, and a simplistic interpretation of negligence per se might vindicate such an
argument.
But this is by no means a simple case. There is the fact which we consider as proven, that
Aonuevo was speeding as he made the left turn, and such negligent act was the proximate cause of
the accident. This reckless behavior would have imperiled anyone unlucky enough within the path of
Aonuevos car as it turned into the intersection, whether they are fellow motorists, pedestrians, or
cyclists. We are hard put to conclude that Villagracia would have avoided injury had his bicycle been
up to par with safety regulations, especially considering that Aonuevo was already speeding as he
made the turn, or before he had seen Villagracia. Even assuming that Aonuevo had failed to see

Villagracia because the bicycle was not equipped with headlights, such lapse on the cyclists part would
not have acquitted the driver of his duty to slow down as he proceeded to make the left turn.
This court has appreciated that negligence per se, arising from the mere violation of a traffic
statute, need not be sufficient in itself in establishing liability for damages. In Sanitary Steam
Laundry, Inc. v. Court of Appeals,[39] a collision between a truck and a privately-owned Cimarron van
caused the death of three of the vans passengers. The petitioner therein, the owner of the truck,
argued that the driver of the Cimarron was committing multiple violations of the Land Transportation
and Traffic Code[40] at the time of the accident. Among these violations: the Cimarron was overloaded
at the time of the accident; the front seat of the van was occupied by four adults, including the driver;
and the van had only one functioning headlight. Similar as in this case, petitioner therein invoked
Article 2185 and argued that the driver of the Cimarron should be presumed negligent. The Court,
speaking through Justice Mendoza, dismissed these arguments:
[It] has not been shown how the alleged negligence of the Cimarron driver contributed to the collision
between the vehicles. Indeed, petitioner has the burden of showing a causal connection between the
injury received and the violation of the Land Transportation and Traffic Code. He must show that the
violation of the statute was the proximate or legal cause of the injury or that it substantially
contributed thereto. Negligence consisting in whole or in part, of violation of law, like any other
negligence, is without legal consequence unless it is a contributing cause of the injury. Petitioner says
that driving an overloaded vehicle with only one functioning headlight during nighttime certainly
increases the risk of accident, that because the Cimarron had only one headlight, there was decreased
visibility, and that the fact that the vehicle was overloaded and its front seat overcrowded decreased
its maneuverability. However, mere allegations such as these are not sufficient to discharge its burden
of proving clearly that such alleged negligence was the contributing cause of the injury.[41]
Sanitary Steam[42] is controlling in this case. The bare fact that Villagracia was violating a
municipal ordinance at the time of the accident may have sufficiently established some degree of
negligence on his part, but such negligence is without legal consequence unless it is shown that it was
a contributing cause of the injury. If anything at all, it is but indicative of Villagracias failure in fulfilling
his obligation to the municipal government, which would then be the proper party to initiate corrective
action as a result. But such failure alone is not determinative of Villagracias negligence in relation to
the accident. Negligence is relative or comparative, dependent upon the situation of the parties and
the degree of care and vigilance which the particular circumstances reasonably require. [43] To
determine if Villagracia was negligent, it is not sufficient to rely solely on the violations of the
municipal ordinance, but imperative to examine Villagracias behavior in relation to the
contemporaneous circumstances of the accident.
The rule on negligence per se must admit qualifications that may arise from the logical
consequences of the facts leading to the mishap. The doctrine (and Article 2185, for that matter) is
undeniably useful as a judicial guide in adjudging liability, for it seeks to impute culpability arising
from the failure of the actor to perform up to a standard established by a legal fiat. But the doctrine
should not be rendered inflexible so as to deny relief when in fact there is no causal relation between
the statutory violation and the injury sustained. Presumptions in law, while convenient, are not
intractable so as to forbid rebuttal rooted in fact. After all, tort law is remunerative in spirit, aiming to
provide compensation for the harm suffered by those whose interests have been invaded owing to the
conduct of others.[44]
Under American case law, the failures imputed on Villagracia are not grievous enough so as to
negate monetary relief. In the absence of statutory requirement, one is not negligent as a matter of
law for failing to equip a horn, bell, or other warning devise onto a bicycle. [45] In most cases, the
absence of proper lights on a bicycle does not constitute negligence as a matter of law [46] but is a
question for the jury whether the absence of proper lights played a causal part in producing a collision
with a motorist.[47] The absence of proper lights on a bicycle at night, as required by statute or
ordinance, may constitute negligence barring or diminishing recovery if the bicyclist is struck by a
motorist as long as the absence of such lights was a proximate cause of the collision; [48] however, the

absence of such lights will not preclude or diminish recovery if the scene of the accident was well
illuminated by street lights,[49] if substitute lights were present which clearly rendered the bicyclist
visible,[50] if the motorist saw the bicycle in spite of the absence of lights thereon, [51] or if the motorist
would have been unable to see the bicycle even if it had been equipped with lights. [52] A bicycle
equipped with defective or ineffective brakes may support a finding of negligence barring or
diminishing recovery by an injured bicyclist where such condition was a contributing cause of the
accident.[53]
The above doctrines reveal a common thread. The failure of the bicycle owner to comply with
accepted safety practices, whether or not imposed by ordinance or statute, is not sufficient to negate
or mitigate recovery unless a causal connection is established between such failure and the injury
sustained. The principle likewise finds affirmation in Sanitary Steam, wherein we declared that the
violation of a traffic statute must be shown as the proximate cause of the injury, or that it
substantially contributed thereto.[54] Aonuevo had the burden of clearly proving that the alleged
negligence of Villagracia was the proximate or contributory cause of the latters injury.
On this point, the findings of the Court of Appeals are well-worth citing:
[As] admitted by appellant Aonuevo, he first saw appellee Villagracia at a distance of about ten (10)
meters before the accident. Corrolarily, therefore, he could have avoided the accident had he
[stopped] alongside with an earlier (sic) jeep which was already at a full stop giving way to appellee.
But according to [eyewitness] Sorsano, he saw appellant Aonuevo umaarangkada and hit the leg of
Villagracia (TSN March 14, 1990 p. 30). This earlier (sic) jeep at a full stop gave way to Villagracia to
proceed but Aonuevo at an unexpected motion (umarangkada) came out hitting Villagracia (TSN
March 9, 1990 p. 49). Appellant Aonuevo admitted that he did not blow his horn when he crossed Boni
Avenue (TSN March 21, 1990 p. 47).[55]
By Aonuevos own admission, he had seen Villagracia at a good distance of ten (10) meters. Had
he been decelerating, as he should, as he made the turn, Aonuevo would have had ample opportunity
to avoid hitting Villagracia. Moreover, the fact that Aonuevo had sighted Villagracia before the accident
would negate any possibility that the absence of lights on the bike contributed to the cause of the
accident.[56] A motorist has been held liable for injury to or death of a bicyclist where the motorist
turned suddenly into the bicyclist so as to cause a collision. [57]
Neither does Aonuevo attempt before this Court to establish a causal connection between the
safety violations imputed to Villagracia and the accident itself. Instead, he relied on a putative
presumption that these violations in themselves sufficiently established negligence appreciable against
Villagracia. Since the onus on Aonuevo is to conclusively prove the link between the violations and the
accident, we can deem him as having failed to discharge his necessary burden of proving Villagracias
own liability.
Neither can we can adjudge Villagracia with contributory negligence. The leading case in
contributory negligence, Rakes v. Atlantic Gulf[58]clarifies that damages may be mitigated if the
claimant in conjunction with the occurrence, [contributes] only to his injury.[59] To hold a person as
having contributed to his injuries, it must be shown that he performed an act that brought about his
injuries in disregard of warnings or signs of an impending danger to health and body. [60] To prove
contributory negligence, it is still necessary to establish a causal link, although not proximate,
between the negligence of the party and the succeeding injury. In a legal sense, negligence is
contributory only when it contributes proximately to the injury, and not simply a condition for its
occurrence.[61]
As between Aonuevo and Villagracia, the lower courts adjudged Aonuevo as solely responsible for
the accident. The petition does not demonstrate why this finding should be reversed. It is hard to
imagine that the same result would not have occurred even if Villagracias bicycle had been equipped
with safety equipment. Aonuevo himself admitted having seen Villagracia from ten (10) meters away,
thus he could no longer claim not having been sufficiently warned either by headlights or safety horns.

The fact that Aonuevo was recklessly speeding as he made the turn likewise leads us to believe that
even if Villagracias bicycle had been equipped with the proper brakes, the cyclist would not have had
opportunity to brake in time to avoid the speeding car. Moreover, it was incumbent on Aonuevo to
have established that Villagracias failure to have installed the proper brakes contributed to his own
injury. The fact that Aonuevo failed to adduce proof to that effect leads us to consider such causal
connection as not proven.
All told, there is no reason to disturb the assailed judgment.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED. Costs
against petitioner.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FELICIANO, J:
In the early morning of 15 November 1975 at about 1:30 a.m. private respondent Leonardo
Dionisio was on his way home he lived in 1214-B Zamora Street, Bangkal, Makati from a
cocktails-and-dinner meeting with his boss, the general manager of a marketing corporation. During
the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving
his Volkswagen car and had just crossed the intersection of General Lacuna and General Santos
Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna Street,
when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and
thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck,
owned by and registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked
on the right hand side of General Lacuna Street (i.e., on the right hand side of a person facing in the
same direction toward which Dionisio's car was proceeding), facing the oncoming traffic. The dump
truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the
street, partly blocking the way of oncoming traffic. There were no lights nor any so-called "early
warning" reflector devices set anywhere near the dump truck, front or rear. The dump truck had
earlier that evening been 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 tried to avoid a collision by swerving his car to the left but it was
too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some
physical injuries including some permanent facial scars, a "nervous breakdown" and loss of two gold
bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his injuries was 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, 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
rare in the selection and supervision of the dump truck driver.

The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered
the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the
replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected
income for plaintiff brought about the accident in controversy and which is the result of
the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. 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) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the
wanton disregard of defendants to settle amicably this case with the plaintiff before the
filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for
attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476
affirmed the decision of the trial court but modified the award of damages to the following extent:
1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate court
found the plaintiff to have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected income was reduced
to P100,000.00,basically because Dionisio had voluntarily resigned his job
such that, in the opinion of the appellate court, his loss of income "was not
solely attributable to the accident in question;" and
3. The award of P100,000.00 as moral damages was held by the appellate
court as excessive and unconscionable and hence reduced to P50,000.00.
The award of P10,000.00 as exemplary damages
attorney's fees and costs remained untouched.

and P4,500.00 as

This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the
manner in which the dump truck was parked along General Lacuna Street on the basis of which both
courts drew the inference that there was negligence on the part of Carbonel, the dump truck driver,
and that this negligence was the proximate cause of the accident and Dionisio's injuries. We note,
however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the
true legal and proximate cause of the accident was not the way in which the dump truck had been
parked but rather the reckless way in which Dionisio had driven his car that night when he smashed
into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded
that Dionisio was "in some way, negligent" but apparently failed to see the relevance of Dionisio's
negligence and made no further mention of it. We have examined the record both before the trial

court and the Intermediate Appellate Court and we find that both parties had placed into the record
sufficient evidence on the basis of which the trial court and the appellate court could have and should
have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that
night. The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in
which the dump truck was parked, that negligence was merely a "passive and static condition" and
that private respondent Dionisio's recklessness constituted an intervening, efficient cause
determinative of the accident and the injuries he sustained. The need to administer substantial justice
as between the parties in this case, without having to remand it back to the trial court after eleven
years, compels us to address directly the contention put forward by the petitioners and to examine for
ourselves the record pertaining to Dionisio's alleged negligence which must bear upon the liability, or
extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent
Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving
fast or speeding just before the collision with the dump truck; (c) whether Dionisio had purposely
turned off his car's headlights before contact with the dump truck or whether those headlights
accidentally malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at
the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the
person of Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence
here consisted of the testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the
Makati Medical Center for emergency treatment immediately after the accident. At the Makati Medical
Center, a nurse took off Dionisio's clothes and examined them along with the contents of pockets
together with Patrolman Cuyno. 1
Private respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the explanation that his family may
have misplaced his curfew pass. He also offered a certification (dated two years after the accident) issued by one Major Benjamin N. Libarnes
of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew
passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid curfew pass. This
certification did not, however, specify any pass serial number or date or period of effectivity of the supposed curfew pass. We find that private
respondent Dionisio was unable to prove possession of a valid curfew pass during the night of the accident and that the preponderance of
evidence shows that he did not have such a pass during that night. The relevance of possession or non-possession of a curfew pass that night
lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and whether he had indeed purposely put out
his headlights before the accident, in order to avoid detection and possibly arrest by the police in the nearby police station for travelling after
the onset of curfew without a valid curfew pass.

On the second issue whether or not Dionisio was speeding home that night both the trial court
and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene
of the accident almost immediately after it occurred, the police station where he was based being
barely 200 meters away. Patrolman Cuyno testified that people who had gathered at the scene of the
accident told him that Dionisio's car was "moving fast" and did not have its headlights on. 2 Dionisio,
on the other hand, claimed that he was travelling at a moderate speed at 30 kilometers per hour and had
just crossed the intersection of General Santos and General Lacuna Streets and had started to accelerate
when his headlights failed just before the collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag
within any of the recognized exceptions to the hearsay rule since the facts he testified to were not
acquired by him through official information and had not been given by the informants pursuant to
any duty to do so. Private respondent's objection fails to take account of the fact that the testimony of
Patrolman Cuyno is admissible not under the official records exception to the hearsay rule 4 but rather
as part of the res gestae. 5 Testimonial evidence under this exception to the hearsay rule consists of excited
utterances made on the occasion of an occurrence or event sufficiently startling in nature so as to render
inoperative the normal reflective thought processes of the observer and hence made as a spontaneous
reaction to the occurrence or event, and not the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing into a stationary object
in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective,

reactions from observers who happened to be around at that time. The testimony of Patrolman Cuyno
was therefore admissible as part of the res gestae and should have been considered by the trial court.
Clearly, substantial weight should have been ascribed to such testimony, even though it did not, as it
could not, have purported to describe quantitatively the precise velocity at winch Dionisio was
travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights
accidentally malfunctioned, just moments before the accident. The Intermediate Appellate Court
expressly found that the headlights of Dionisio's car went off as he crossed the intersection but was
non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut off
his headlights even before he reached the intersection so as not to be detected by the police in the
police precinct which he (being a resident in the area) knew was not far away from the intersection.
We believe that the petitioners' theory is a more credible explanation than that offered by private
respondent Dionisio i.e., that he had his headlights on but that, at the crucial moment, these had in
some mysterious if convenient way malfunctioned and gone off, although he succeeded in switching
his lights on again at "bright" split seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The
evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent
Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati
Medical Center in an unconscious condition. 7This testimony has to be taken in conjunction with the
admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We
do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of
liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. 8 There simply is
not enough evidence to show how much liquor he had in fact taken and the effects of that upon his physical
faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of hard liquor
may affect different people differently.
The conclusion we draw from the factual circumstances outlined above is that private respondent
Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster
than he should have been. Worse, he extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus did not see the dump truck that was parked
askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the
legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent
manner in which the dump truck was parked in other words, the negligence of petitioner Carbonel.
That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand
and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different
manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable consequence
of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and static
condition" and that private respondent Dionisio's negligence was an "efficient intervening cause and
that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the
accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are
drawn from a reading of some of the older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We note,
firstly, that even in the United States, the distinctions between "cause" and "condition" which the
'petitioners would have us adopt have already been "almost entirely discredited." Professors and
Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish between the active "cause"
of the harm and the existing "conditions" upon which that cause operated. If the
defendant has created only a passive static condition which made the damage possible,
the defendant is said not to be liable. But so far as the fact of causation is concerned, in
the sense of necessary antecedents which have played an important part in producing

the result it is quite impossible to distinguish between active forces and passive
situations, particularly since, as is invariably the case, the latter are the result of other
active forces which have gone before. The defendant who spills gasoline about the
premises creates a "condition," but the act may be culpable because of the danger of
fire. When a spark ignites the gasoline, the condition has done quite as much to bring
about the fire as the spark; and since that is the very risk which the defendant has
created, the defendant will not escape responsibility. Even the lapse of a considerable
time during which the "condition" remains static will not necessarily affect liability; one
who digs a trench in the highway may still be liable to another who fans into it a month
afterward. "Cause" and "condition" still find occasional mention in the decisions; but the
distinction is now almost entirely discredited. So far as it has any validity at all, it must
refer to the type of case where the forces set in operation by the defendant have come
to rest in a position of apparent safety, and some new force intervenes. But even in such
cases, it is not the distinction between "cause" and "condition" which is important but
the nature of the risk and the character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from being a "passive and static condition"
was rather an indispensable and efficient cause. The collision between the dump truck and the private
respondent's car would in an probability not have occurred had the dump truck not been parked
askew without any warning lights or reflector devices. The improper parking of the dump truck
created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having
so created this risk, the truck driver must be held responsible. In our view, Dionisio's negligence,
although later in point of time than the truck driver's negligence and therefore closer to the accident,
was not an efficient intervening or independent cause. What the Petitioners describe as an
"intervening cause" was no more than a foreseeable consequent manner which the truck driver had
parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent
Dionisio and others similarly situated not to impose upon them the very risk the truck driver had
created. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it
were, the chain of causation in fact between the improper parking of the dump truck and the accident,
nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in ordinary
human experience is reasonably to be anticipated or one which the defendant has
reason to anticipate under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard against it; or the defendant
may be negligent only for that reason. Thus one who sets a fire may be required to
foresee that an ordinary, usual and customary wind arising later wig spread it beyond
the defendant's own property, and therefore to take precautions to prevent that event.
The person who leaves the combustible or explosive material exposed in a public place
may foresee the risk of fire from some independent source. ... In all of these cases there
is an intervening cause combining with the defendant's conduct to produce the result
and in each case the defendant's negligence consists in failure to protect the plaintiff
against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or a
substantial and important part of the risk, to which the defendant has subjected the
plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope
original risk, and hence of the defendant's negligence. The courts are quite generally
agreed that intervening causes which fall fairly in this category will not supersede the
defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the usual weather of
the vicinity, including all ordinary forces of nature such as usual wind or rain, or snow or
frost or fog or even lightning; that one who leaves an obstruction on the road or a
railroad track should foresee that a vehicle or a train will run into it; ...

The risk created by the defendant may include the intervention of the foreseeable
negligence of others. ... [The standard of reasonable conduct may require the defendant
to protect the plaintiff against 'that occasional negligence which is one of the ordinary
incidents of human life, and therefore to be anticipated.' Thus, a defendant who blocks
the sidewalk and forces the plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by a
car, even though the car is negligently driven; and one who parks an automobile on the
highway without lights at night is not relieved of responsibility when another negligently
drives into it. ---10
We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate
and proximate cause" of the injury remained the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages though such damages are subject to
mitigation by the courts (Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here
of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had
the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed
to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine of the
common law was imported into our jurisdiction byPicart vs. Smith 11 but it is a matter for debate whether, or to
what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory
negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as
compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant
recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do
so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article
2179 of the Civil Code of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law
matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not
believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose
negligence the plaintiff's or the defendant's was the legal or proximate cause of the injury. That
task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to
imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the
continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the
relevant factors that may be taken into account. Of more fundamental importance are the nature of
the negligent act or omission of each party and the character and gravity of the risks created by such
act or omission for the rest of the community. The petitioners urge that the truck driver (and
therefore his employer) should be absolved from responsibility for his own prior negligence because
the unfortunate plaintiff failed to act with that increased diligence which had become necessary to
avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this
proposition is to come too close to wiping out the fundamental principle of law that a man must
respond for the forseeable consequences of his own negligent act or omission. Our law on quasidelicts seeks to reduce the risks and burdens of living in society and to allocate them among the
members of society. To accept the petitioners' pro-position must tend to weaken the very bonds of
society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his
employer Phoenix 16in 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 of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an
affirmative showing of culpa in vigilando on the part of Phoenix.

Turning to the award of damages and taking into account the comparative negligence of private
respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages
awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and
costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall
be solidarity liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the

petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the reduced award of
damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate
amount of compensatory damages, loss of expected income and moral damages private respondent
Dionisio is entitled to by 20% of such amount. Costs against the petitioners.
SO ORDERED.
Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.
Melencio-Herrera, J., is on leave.
Footnotes

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of
the
minors,
ROMMEL
RAMOS,
ROY
RODERICK
RAMOS
and
RON
RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.

KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare
of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A
mistake, through gross negligence or incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a
hospital should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which
overturned the decision4 of the Regional Trial Court, dated 30 January 1992, finding private respondents
liable for damages arising from negligence in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh.
"A") robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she has
three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron Raymond
Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a stone
in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of

examinations which included blood and urine tests (Exhs. "A" and "C") which indicated
she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p.
7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June
10, 1985. They agreed that their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a "cholecystectomy" operation after examining the documents (findings
from the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E.
Ramos, however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in
turn, assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka charged a fee
of P16,000.00, which was to include the anesthesiologist's fee and which was to be paid
after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of
the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p.
11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for
the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean
of the College of Nursing at the Capitol Medical Center, was also there for moral support.
She reiterated her previous request for Herminda to be with her even during the
operation. After praying, she was given injections. Her hands were held by Herminda as
they went down from her room to the operating room (TSN, January 13, 1988, pp. 911). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the
other defendant, who was to administer anesthesia. Although not a member of the
hospital staff, Herminda introduced herself as Dean of the College of Nursing at the
Capitol Medical Center who was to provide moral support to the patient, to them.
Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who
was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then
went back to the patient who asked, "Mindy, wala pa ba ang Doctor"? The former
replied, "Huwag kang mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and informed the patient's
husband, Rogelio, that the doctor was not yet around (id., p. 13). When she returned to
the operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng
ibang Doctor." So, she went out again and told Rogelio about what the patient said (id.,
p. 15). Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival
of the doctor" even as he did his best to find somebody who will allow him to pull out his
wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also thought of
the feeling of his wife, who was inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was
also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at
around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down
to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the
patient, heard somebody say that "Dr. Hosaka is already here." She then saw people
inside the operating room "moving, doing this and that, [and] preparing the patient for
the operation" (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos,
she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr.
Gutierrez say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention
on what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the
nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached her. She
then heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the patient. The patient's nailbed became bluish
and the patient was placed in a trendelenburg position a position where the head of
the patient is placed in a position lower than her feet which is an indication that there is
a decrease of blood supply to the patient's brain (Id., pp. 19-20). Immediately
thereafter, she went out of the operating room, and she told Rogelio E. Ramos "that
something wrong was . . . happening" (Ibid.). Dr. Calderon was then able to intubate the
patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that something
wrong was happening, he told her (Herminda) to be back with the patient inside the
operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong during the intubation. Reacting to what
was told to him, Rogelio reminded the doctor that the condition of his wife would not
have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October
19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened
to the patient. The doctors explained that the patient had bronchospasm (TSN,
November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose condition. She cannot do anything. She cannot
move any part of her body. She cannot see or hear. She is living on mechanical means.
She suffered brain damage as a result of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the
hospital, she has been staying in their residence, still needing constant medical
attention, with her husband Rogelio incurring a monthly expense ranging from
P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed
to be suffering from "diffuse cerebral parenchymal damage" (Exh. "G";see also TSN,
December
21,
1989,
p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of
Quezon City against herein private respondents alleging negligence in the management and care of Erlinda
Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained
by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by
private respondents during the anesthesia phase. On the other hand, private respondents primarily
relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of
brain damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this Court
finds and so holds that defendants are liable to plaintiffs for damages. The defendants
were guilty of, at the very least, negligence in the performance of their duty to plaintiffpatient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost three (3) hours. For after
she committed a mistake in intubating [the] patient, the patient's nailbed became bluish
and the patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in turn, caused the patient
to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part
of his obligation to provide the patient a good anesthesiologist', and for arriving for the
scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room. Moreover,
the hospital is liable for failing through its responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiff-patient. For if
the patient was properly intubated as claimed by them, the patient would not have
become comatose. And, the fact that another anesthesiologist was called to try to
intubate the patient after her (the patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the operation to a later date.
This, they should have done, if defendants acted with due care and prudence as the
patient's case was an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs
and against the defendants. Accordingly, the latter are ordered to pay, jointly and
severally, the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff

Erlinda Ramos reckoned from November 15, 1985 or in the total sum of
P632,000.00 as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum
of P200,000,00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED.

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion
of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and
the complaint below against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar as
appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25,
plus legal interest for justice must be tempered with mercy.
SO ORDERED.

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who
was mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor
received by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the
decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days
before the expiration of the reglementary period for filing a motion for reconsideration. On the same
day, Atty. Ligsay, filed with the appellate court a motion for extension of time to file a motion for
reconsideration. The motion for reconsideration was submitted on 4 July 1995. However, the appellate
court denied the motion for extension of time in its Resolution dated 25 July 1995. 9Meanwhile,
petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed
on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file the
appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court
of the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period
for filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p. 12)
was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on June 24.
The Motion for Reconsideration, in turn, was received by the Court of Appeals already on
July 4, necessarily, the 15-day period already passed. For that alone, the latter should
be denied.
Even assuming admissibility of the Motion for the Reconsideration, but after considering
the Comment/Opposition, the former, for lack of merit, is hereby DENIED.
SO ORDERED.

10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12
April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present

petition for certiorari under Rule 45. The Court granted the motion for extension of time and gave
petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from
the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date
fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by
the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES
GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

OF

RESPONDENTS

DRA.

II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.

11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the
Court
of
Appeals.
In
their
12
Comment, private respondents contend that the petition should not be given due course since the
motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed
by the appellate court for having been filed beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to
then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the
appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein
he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by
petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus,
no copy of the decision of the counsel on record. Petitioner, not being a lawyer and unaware of the
prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on
20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party's
lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on
record is no notice at all. In the present case, since a copy of the decision of the appellate court was
not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence,
the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover,
since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of
petitioner, we believed that the receipt of the former should be considered in determining the
timeliness of the filing of the present petition. Based on this, the petition before us was submitted on
time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a
more logical presentation of the discussion we shall first consider the issue on the applicability of the
doctrine of res ipsa loquiturto the instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquiturdoctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself."
The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury,
taken with the surrounding circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiff's prima faciecase, and present a question of fact for defendant to
meet with an explanation. 13 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 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 from or was caused by
the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is charged with negligence. 15 It is grounded in the
superior logic of ordinary human experience and on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself. 16 Hence,res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does
not create or constitute an independent or separate ground of liability. 17 Instead, it is considered as
merely evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere
procedural of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence. 19 In other words, mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence. It is simply a step in the process of such
proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence
of someone's negligence;
2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated. 21
In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. 22Such element of control must be shown to be within the dominion of the defendant. In order to
have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation
where it is applicable, and must establish that the essential elements of the doctrine were present in a
particular incident. 23
Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the harm are themselves of such a character as to
justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof of negligence. 27 The reason is that the
general rule on the necessity of expert testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a

reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any one may be given by
non-expert witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can determine the proper standard of care. 30Where
common knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquiturwithout medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission complained of and the injury sustained while under
the custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under
usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the
removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the burden of
proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not
a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases where
a layman is able to say, as a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to explain why
any particular diagnosis was not correct, or why any particular scientific treatment did not produce the
desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not accomplished. 40 The real question, therefore, is
whether or not in the process of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary professional activity in such
operations, which, if unexplained would themselves reasonably speak to the average man as the negligent
cause or causes of the untoward consequence. 41 If there was such extraneous interventions, the doctrine
of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of
exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be
explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation
presents a case for the application ofres ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,
applying theres ipsa loquitur stated:

43

where the Kansas Supreme Court in

The plaintiff herein submitted himself for a mastoid operation and delivered his person
over to the care, custody and control of his physician who had complete and exclusive
control over him, but the operation was never performed. At the time of submission he
was neurologically sound and physically fit in mind and body, but he suffered irreparable
damage and injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or in the
absence of negligence in the administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is

not rendered decerebrate as a consequence of administering such anesthesia in the

absence of negligence. Upon these facts and under these circumstances a layman would
be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have
followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was
under the influence of anesthetics and unconscious, and the circumstances are such that
the true explanation of event is more accessible to the defendants than to the plaintiff
for they had the exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a
cause of action is stated under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present
case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to the care, custody
and control of private respondents who exercised complete and exclusive control over her. At the time
of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without
undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the
process of a gall bladder operation. In fact, this kind of situation does not in the absence of negligence
of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a
person being put under anesthesia is not rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive control of
private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not have
been guilty of contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while
the patient is unconscious and under the immediate and exclusive control of the physicians, we hold
that a practical administration of justice dictates the application of res ipsa loquitur. Upon these facts
and under these circumstances the Court would be able to say, as a matter of common knowledge and
observation, if negligence attended the management and care of the patient. Moreover, the liability of
the physicians and the hospital in this case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact
no operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a
case is made out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that
the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia,
or to any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order
to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding
that private respondents were not negligent in the care of Erlinda during the anesthesia phase of the
operation and, if in the affirmative, whether the alleged negligence was the proximate cause of
Erlinda's comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred
in relying on the testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of
Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the

Court of Appeals rationalized that she was candid enough to admit that she experienced some
difficulty in the endotracheal intubation 45 of the patient and thus, cannot be said to be covering her
negligence with falsehood. The appellate court likewise opined that private respondents were able to show
that the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to
the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as
testified on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the
testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was
traceable to the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private respondents were unable
to disprove the presumption of negligence on their part in the care of Erlinda and their negligence was
the proximate cause of her piteous condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based.
As will be shown hereinafter, private respondents' own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts indicative of their negligence in the care and
management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia
phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This
fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and
petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic
event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by
Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the stretcher holding
the left hand of the patient and all of a sudden heard some remarks
coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on
the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand
where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr.
Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the
patient's nailbed became bluish and I saw the patient was placed in
trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient was placed in that
trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease
of blood supply to the brain. 46
xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country will show that intubation is
not taught as part of nursing procedures and techniques. Indeed, we take judicial notice
of the fact that nurses do not, and cannot, intubate. Even on the assumption that she is
fully capable of determining whether or not a patient is properly intubated, witness
Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25,
1991, p. 13). More importantly, there is no evidence that she ever auscultated the
patient or that she conducted any type of examination to check if the endotracheal tube
was in its proper place, and to determine the condition of the heart, lungs, and other
organs. Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez failed
to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in
doing so clearly suffer from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as,
the statements and acts of the physician and surgeon, external appearances, and manifest conditions
which are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa loquitur where
the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be
expected to have knowledge, or where the lack of skill or want of care is so obvious as to render expert
testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so
common, that even an ordinary person can tell if it was administered properly. As such, it would not be too
difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not require a
medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience
and scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was
fully capable of determining whether or not the intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching
hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of
the Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that the
same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and
spontaneity which would have been difficult to fabricate. With her clinical background as a nurse, the Court
is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful
day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that
she experienced difficulty in inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first
attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away.

51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned

more anteriorly (slightly deviated from the normal anatomy of a person) 52 making it harder to locate
and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior
to the induction of anesthesia, even if this would mean postponing the procedure. From their
testimonies, it appears that the observation was made only as an afterthought, as a means of
defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally
observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for
anesthesia begins when the anesthesiologist reviews the patient's medical records and visits with the
patient, traditionally, the day before elective surgery. 53 It includes taking the patient's medical history,
review of current drug therapy, physical examination and interpretation of laboratory data. 54 The physical
examination performed by the anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway normally
involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent central
incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental distance. 56 Thus, physical
characteristics of the patient's upper airway that could make tracheal intubation difficult should be
studied. 57 Where the need arises, as when initial assessment indicates possible problems (such as the
alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway would go
a long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the
day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or preoperative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra.
Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not
properly informed of the possible difficulties she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the first time only an hour before the
scheduled operative procedure was, therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the
core of the physician's centuries-old Hippocratic Oath. Her failure to follow this medical procedure is,
therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the
trial court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra.
Gutierrez tried to muddle the difference between an elective surgery and an emergency surgery just
so her failure to perform the required pre-operative evaluation would escape unnoticed. In her
testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative
procedure of the anesthesiologist and in my case, with elective cases and
normal cardio-pulmonary clearance like that, I usually don't do it except on
emergency and on cases that have an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able to

see the patient only a few minutes before surgery, if at all. Elective procedures, on the other hand,
are operative procedures that can wait for days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper interview
and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to be used,
and their possible hazards for purposes of informed consent. Usually, the pre-operative assessment is
conducted at least one day before the intended surgery, when the patient is relaxed and cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the
time to make a thorough evaluation of Erlinda's case prior to the operation and prepare her for
anesthesia. However, she never saw the patient at the bedside. She herself admitted that she had
seen petitioner only in the operating room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is
truly the proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's
coma was due to bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium,
introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College
of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private
respondents' theory that the oxygen deprivation which led to anoxic encephalopathy, 60 was due to an
unpredictable drug reaction to the short-acting barbiturate. We find the theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because
he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the
supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience gained by a specialist or expert
in the administration and use of Sodium Pentothal on patients, but only from reading certain
references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to
use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to
intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what
you have read from books and not by your own personal application of the
medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?
A: They used
appendectomy.

it

on

me.

went

into

bronchospasm

during

my

Q: And because they have used it on you and on account of your own
personal experience you feel that you can testify on pentothal here with
medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary
diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic druginduced, allergic mediated bronchospasm alleged in this case is within the disciplines of
anesthesiology, allergology and pharmacology. On the basis of the foregoing transcript, in which the
pulmonologist himself admitted that he could not testify about the drug with medical authority, it is
clear that the appellate court erred in giving weight to Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium.
The provision in the rules of evidence

62

regarding expert witnesses states:

Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized authorities on the subject
or by practical experience.63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above
standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly,
apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally
avoided providing testimony by competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis
without supporting medical proof, and against the weight of available evidence, then every anesthetic
accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by
private respondents was a mere afterthought. Such an explanation was advanced in order to
advanced in order to absolve them of any and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces injury, and without which the result would not have
occurred. 64 An injury or damage is proximately caused by an act or a failure to act, whenever it appears
from the evidence in the case, that the act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission. 65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately,
her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation was a failure. This
fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz
noticed abdominal distention on the body of Erlinda. The development of abdominal distention,
together with respiratory embarrassment indicates that the endotracheal tube entered the esophagus
instead of the respiratory tree. In other words, instead of the intended endotracheal intubation what
actually took place was an esophageal intubation. During intubation, such distention indicates that air
has entered the gastrointestinal tract through the esophagus instead of the lungs through the trachea.
Entry into the esophagus would certainly cause some delay in oxygen delivery into the lungs as the
tube which carries oxygen is in the wrong place. That abdominal distention had been observed during
the first intubation suggests that the length of time utilized in inserting the endotracheal tube (up to
the time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay in
the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already
blue. 67 However, private respondents contend that a second intubation was executed on Erlinda and this
one was successfully done. We do not think so. No evidence exists on record, beyond private respondents'
bare claims, which supports the contention that the second intubation was successful. Assuming that the
endotracheal tube finally found its way into the proper orifice of the trachea, the same gave no guarantee
of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed
immediately after the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation was accomplished. Even granting that the tube was
successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial
court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for
about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible
for
one-third
(1/3)
of
deaths
and
serious
injuries
associated
with
anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations may be
anticipated by performing a thorough evaluation of the patient's airway prior to the operation. 70 As stated
beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which could have
prevented this unfortunate incident. Had appropriate diligence and reasonable care been used in the preoperative evaluation, respondent physician could have been much more prepared to meet the contingency
brought about by the perceived anatomic variations in the patient's neck and oral area, defects which
would have been easily overcome by a prior knowledge of those variations together with a change in
technique. 71 In other words, an experienced anesthesiologist, adequately alerted by a thorough preoperative evaluation, would have had little difficulty going around the short neck and protruding
teeth. 72 Having failed to observe common medical standards in pre-operative management and intubation,
respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical
team. As the so-called "captain of the ship," 73 it is the surgeon's responsibility to see to it that those
under him perform their task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his
failure to exercise the proper authority (as the "captain" of the operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it
does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at
the same time as Erlinda's cholecystectomy, and was in fact over three hours late for the latter's operation.
Because of this, he had little or no time to confer with his anesthesiologist regarding the anesthesia
delivery. This indicates that he was remiss in his professional duties towards his patient. Thus, he shares
equal responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting "consultants," 74 who

are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in
medical malpractice cases. However, the difficulty is only more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications;
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either accept or reject the
application. 75 This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to
attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients
into the hospital. In addition to these, the physician's performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent
hospital asserts in denying all responsibility for the patient's condition, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employeremployee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals and their attending and visiting physicians.
This being the case, the question now arises as to whether or not respondent hospital is solidarily
liable with respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also
for those of others based on the former's responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned prove that they have observed the diligence of
a good father of the family to prevent damage. 78 In other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good
father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to
the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or
proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last
paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily
responsible with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its

being updated" covering the period from 15 November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of home-based care for a comatose individual.
The calculated amount was not even arrived at by looking at the actual cost of proper hospice care for
the patient. What it reflected were the actual expenses incurred and proved by the petitioners after
they were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to
meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly turned
from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube.
Food preparation should be normally made by a dietitian to provide her with the correct daily caloric
requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation
of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the care the
family is usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the
Civil Code on actual or compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered
by him as he has duly proved. The Civil Code provides:
Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the
injury suffered as a consequence of an act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred
and proved, up to the time of trial;and one which would meet pecuniary loss certain to be suffered but
which could not, from the nature of the case, be made with certainty. 80 In other words, temperate
damages can and should be awarded on top of actual or compensatory damages in instances where the
injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises
when both actual and temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable and certainly not in the best interests of the administration of justice
for the victim in such cases to constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded temperate damages are
appropriate. The amount given as temperate damages, though to a certain extent speculative, should
take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at the onset of litigation, it would be
now much more in step with the interests of justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire circumstances to provide substandard

care at home without the aid of professionals, for anything less would be grossly inadequate. Under
the circumstances, an award of P1,500,000.00 in temperate damages would therefore be
reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered
by the plaintiff would have led to expenses which were difficult to estimate because while they would have
been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were
likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of
her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in
her prosthetic devise due to the shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will
have to be replaced and readjusted to changes in the size of her lower limb effected by
the biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the
bones of all post-menopausal women. In other words, the damage done to her would
not only be permanent and lasting, it would also be permanently changing and adjusting
to the physiologic changes which her body would normally undergo through the years.
The replacements, changes, and adjustments will require corresponding adjustive
physical and occupational therapy. All of these adjustments, it has been documented,
are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions of the lower limb. The sensory
functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable. 83
The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much
more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a
comatose state for over fourteen years now. The burden of care has so far been heroically shouldered
by her husband and children, who, in the intervening years have been deprived of the love of a wife
and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if
petitioner's condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the
surface of the resulting moral damage because it would be highly speculative to estimate the amount
of emotional and moral pain, psychological damage and injury suffered by the victim or those actually
affected by the victim's condition. 84 The husband and the children, all petitioners in this case, will have to
live with the day to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil.
They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to
take into account their life with a comatose patient. They, not the respondents, are charged with the moral

responsibility of the care of the victim. The family's moral injury and suffering in this case is clearly a real
one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued
at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally cause injury or death to their patients.
However, intent is immaterial in negligence cases because where negligence exists and is proven, the
same automatically gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physician's experience with his patients would sometimes tempt him to
deviate from established community practices, and he may end a distinguished career using
unorthodox methods without incident. However, when failure to follow established procedure results in
the evil precisely sought to be averted by observance of the procedure and a nexus is made between
the deviation and the injury or damage, the physician would necessarily be called to account for it. In
the case at bar, the failure to observe pre-operative assessment protocol which would have influenced
the intubation in a salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so
as to award in favor of petitioners, and solidarily against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a
monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4)
P100,000.00 each as exemplary damages and attorney's fees; and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
G.R. No. L-12986

March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA
ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondentsappellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
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 petitioners' second 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, the first as alleged owner of the station and the second as its agent in
charge of operation. Negligence on the part of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners 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 the underground tank
of the Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo Street,
this City, an unknown Filipino lighted a cigarette and threw the burning match stick near
the main valve of the said underground tank. Due to the gasoline fumes, fire suddenly
blazed. Quick action of Leandro Flores in pulling off 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 accessorias 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 contained cigarettes and matches, installed between the gasoline pumps and the
underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the
history of the gasoline station and what the chief of the fire department had told him on the same
subject.
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 of respondents; secondly, that with respect to
the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for
Salvador Capacillo," the latter was presented as witness but respondents waived their right to crossexamine him although they had the opportunity to do so; and thirdly, that in any event the said
reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, now Rule
130.
The first contention is not borne out by the record. The transcript of the hearing of September 17,
1953 (pp. 167-170) shows that the reports in question, when offered as evidence, were objected to
by counsel for each of respondents on the ground that they were hearsay and that they were
"irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and
X-6 were admitted without objection; the admission of the others, including the disputed ones, carried
no such explanation.
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 testimony
would still have been objectionable as far as information gathered by him from third persons was
concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that "entries
in 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."
There are three requisites for admissibility under the rule just mentioned: (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 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material facts
recited in the reports as to the cause and circumstances of the fire were not within the personal
knowledge of the officers who conducted the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station
were 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 V-Africa, 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
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein
were not acquired by the reporting officers through official information, not having been given by the
informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine
of res ipsa loquitur should apply so as to presume negligence on the part of appellees. Both the trial
court and the appellate court refused to apply the doctrine in the instant case on the grounds that "as
to (its) applicability ... in the Philippines, there seems to he nothing definite," and that while the rules
do not prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use
for such doctrine." The question deserves more than such summary dismissal. The doctrine has
actually been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and Development
Co. (CA-G.R. No. 3240-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.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee 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:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its
defense. While it is the rule, as contended by the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the
proximate cause of his injury was the negligence of the defendant, it is also a recognized
principal that "where the thing which caused injury, without fault of the injured person, is under
the exclusive control of the defendant and the injury is such as in the ordinary course of things
does not occur if he having such control use proper care, it affords reasonable evidence, in the
absence of the explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due care and
diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is
known by the name of res ipsa loquitur (the transaction speaks for itself), and 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 v. Boadle, 2 H & Co. 722;
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 its 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 highly combustible material, in the storage and sale of
which extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it
arises almost invariably from some act of man. A case strikingly similar to the one before Us is Jones
vs. Shell Petroleum Corporation, et al., 171 So. 447:
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 station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire
started with resulting damages to the building owned by Jones. Alleging that the damages to
his 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.
1wph1.t

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence one relating to the cause of the
fire and the other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses
were placed on the stand by the defendant.

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 uncontradicted testimony of
plaintiff's witnesses that fire started in the underground tank attached to the filling station
while it was being filled from the tank truck and while both the tank and the truck were in
charge of and being operated by the agents or employees of the defendant, extended to the
hose and tank truck, and was communicated from the burning hose, tank truck, and escaping
gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's failure to
explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked
the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
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 the doctrine has been
applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake
Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v.
Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline station,
with all its appliances, equipment and employees, was under the control of appellees. A fire occurred
therein 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 the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa)
the following appears:
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 t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this
constitute a secondary hazard to its operation which in turn endangers the entire neighborhood
to conflagration.
Furthermore, aside from precautions already taken by 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.
Records show that there have been two cases of fire which caused not only material damages
but desperation and also panic in the neighborhood.

Although the soft drinks stand had been eliminated, 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 crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties on the
basis of his own personal observation of the facts reported, may properly be considered as an
exception to the hearsay rule. These facts, descriptive of the location and objective circumstances
surrounding the operation of the gasoline station in question, strengthen the presumption of
negligence under the doctrine of res ipsa loquitur, since on their face they called for more stringent
measures of caution than those which would satisfy the standard of due diligence under ordinary
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 coca-cola (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."
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, 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 sheets, which would predictably
crumple and melt when subjected to intense heat. Defendants' 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.
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 who, without authority, or
permission of answering defendant, passed through the gasoline station and negligently threw a
lighted match in the premises." No evidence on this point was adduced, but assuming the allegation
to be true certainly any unfavorable inference from the admission may be taken against Boquiren
it does not extenuate his negligence. A decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule which we find acceptable here. "It is the rule
that those who distribute a dangerous article or agent, owe a degree of protection to the public
proportionate to and commensurate with a danger involved ... we think it is the generally accepted
rule as applied to torts that 'if the effects of the actor's negligent conduct actively and continuously
operate to bring about harm to another, the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent, 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 intention 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 Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This
issue depends on whether Boquiren was an independent contractor, as held by the Court of Appeals,
or an agent of Caltex. This question, in the light of the facts not controverted, is one of law and hence
may be passed upon by this Court. These facts are: (1) Boquiren made an admission that he was an
agent of Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the equipment
therein; (3) Caltex exercised control over Boquiren in the management of the state; (4) the delivery
truck used in delivering gasoline to the station had the name of CALTEX painted on it; and (5) the
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).

In Boquiren's amended answer to the second amended complaint, he denied that he directed one of
his drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one
there was, was not in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the
owners of the gasoline station." It is true that Boquiren later on amended his answer, and that among
the changes was one to the effect that he was not acting as agent of Caltex. But then again, in his
motion to dismiss appellants' second amended complaint the ground alleged was that it stated no
cause of action since under the allegations thereof he was merely acting as agent of Caltex, such that
he could not have incurred personal liability. A motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.
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 one-year period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of January
1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is
quite significant, and gives rise to the conclusion that it was designed precisely to free Caltex from
any responsibility with respect to the fire, as shown by the clause that Caltex "shall not be liable for
any injury to person or property while in the property herein licensed, it being understood and agreed
that LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."
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 the premises and all the equipment therein. He could sell only Caltex Products. Maintenance of
the station and its equipment was subject to the approval, in other words control, of Caltex. Boquiren
could not assign or transfer his rights as licensee without the consent of Caltex. The license
agreement was supposed to be from January 1, 1948 to December 31, 1948, and thereafter until
terminated by Caltex upon two days prior written notice. Caltex could at any time cancel and
terminate the agreement in case Boquiren ceased to sell Caltex products, or did not conduct the
business with due diligence, in the judgment of Caltex. Termination of the contract was therefore a
right granted only to Caltex but not to Boquiren. These provisions of the contract show the extent of
the control of Caltex over Boquiren. The control was such that the latter was virtually an employee of
the former.
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 tradename and the operator sold only the products of the company;
that the equipment used by the operator belonged to the company and were just loaned to the
operator and the company took charge of their repair and maintenance; that an employee of
the company 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.
To determine the nature of a contract courts do not have or are not bound to rely upon the
name or title given it by the contracting parties, should thereby a controversy as to what they
really had intended to enter into, but the way the contracting parties do or perform their
respective obligations stipulated or agreed upon may be shown and inquired into, and should
such performance conflict with the name or title given the contract by the parties, the former
must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent
relationship of employer and independent contractor, and of avoiding liability for the negligence
of the employees about the station; but the company was not satisfied to allow such
relationship to exist. The evidence shows that it immediately assumed control, and proceeded
to direct the method by which the work contracted for should be performed. By reserving the
right to terminate the contract at will, it retained the means of compelling submission to its
orders. Having elected to assume control and to direct the means and methods by which the
work has to be performed, it must be held liable for 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 v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash
invoices were presented to show that Boquiren had bought said gasoline from Caltex. Neither was
there a sales contract to prove the same.
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 recovered be
measured by the damages actually suffered, otherwise the principle prohibiting unjust enrichment
would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the lower
court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding
the testimony of one of the Ong children that said property was worth P4,000.00. We agree that the
court erred, since it is of common knowledge that the assessment for taxation purposes is not an
accurate gauge of fair market value, and in this case should not prevail over positive evidence of such
value. The heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily
to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively,
with interest from the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar
and
Sanchez,
JJ.,
concur.
Dizon, J., took no part.
G.R. No. 73998 November 14, 1988
PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS MULTIINDEMNITY CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.
Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.:
Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate Appellate
Court 2 in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro,
Defendant-Appellant and Third-Party Plaintiff-Appellee, versus Travellers Multi-Indemnity Corporation, Third

Party Defendant- Appellant, "which reversed and set aside the decision 3 of the Regional Trial Court, Third
Judicial Region, Branch XXVI, Cabanatuan City, and also dismissed the complaint, third party complaint,
and the counter claims of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein
petitioner) motion for reconsideration, for lack of merit.

The findings of fact by the trial court which were adopted by the appellate court are as follows:

xxx xxx xxx

Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that on
May 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion
were repairing the tire of their cargo truck with Plate No. SU-730 which was parked
along the right side of the National Highway; that defendant's truck bearing Plate No.
PW-583, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result,
plaintiff was injured and hospitalized at Dr. Paulino J. Garcia Research and Medical
Center and the Our Lady of Lourdes Hospital; that he spent TEN THOUSAND PESOS
(Pl0,000.00) and will incur more expenses as he recuperates from said injuries; that
because of said injuries he would be deprived of a lifetime income in the sum of
SEVENTY THOUSAND PESOS (P70,000.00); and that he agreed to pay his lawyer the
sum of TEN THOUSAND PESOS (Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court declared the defendant in default on
October 12, 1979, and plaintiff's evidence was received ex-parte on January 11, 1978
and February 19, 1980. The decision on behalf of the plaintiff was set aside to give a
chance to the defendant to file his answer and later on, a third-party complaint.
Defendant admitted his ownership of the vehicle involved in the accident driven by
Daniel Serrano. Defendant countered that the plaintiff was merely a bystander, not a
truck helper being a brother-in-law law of the driver of said truck; that the truck
allegedly being repaired was parked, occupying almost half of the right lane towards
Solano, Nueva Vizcaya, right after the curve; that the proximate cause of the incident
was the failure of the driver of the parked truck in installing the early warning device,
hence the driver of the parked car should be liable for damages sustained by the truck of
the herein defendant in the amount of more than P20,000.00; that plaintiff being a mere
bystander and hitchhiker must suffer all the damages he incurred. By way of
counterclaim defendant alleged that due to plaintiffs baseless complaint he was
constrained to engage the services of counsel for P5,000.00 and P200.00 per court
appearance; that he suffered sleepless nights, humiliation, wounded feelings which may
be estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the defendant against his insurer,
the Travellers Multi Indemnity Corporation; that the third-party plaintiff, without
admitting his liability to the plaintiff, claimed that the third-party defendant is liable to
the former for contribution, indemnity and subrogation by virtue of their contract under
Insurance Policy No. 11723 which covers the insurer's liability for damages arising from
death, bodily injuries and damage to property.
Third-party defendant answered that, even assuming that the subject matter of the
complaint is covered by a valid and existing insurance policy, its liability shall in no case
exceed the limit defined under the terms and conditions stated therein; that the
complaint is premature as no claim has been submitted to the third party defendant as
prescribed under the Insurance Code; that the accident in question was approximately
caused by the carelessness and gross negligence of the plaintiff-, that by reason of the
third-party complaint, third-party defendant was constrained to engage the services of
counsel for a fee of P3,000.00.

Pedro Layugan declared that he is a married man with one (1) child. He was employed
as security guard in Mandaluyong, Metro Manila, with a salary of SIX HUNDRED PESOS
(600.00) a month. When he is off-duty, he worked as a truck helper and while working
as such, he sustained injuries as a result of the bumping of the cargo truck they were
repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used
to earn TWO HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS (P300.00)
monthly, at the rate of ONE HUNDRED PESOS (Pl00.00) per trip. Due to said injuries, his
left leg was amputated so he had to use crutches to walk. Prior to the incident, he
supported his family sufficiently, but after getting injured, his family is now being
supported by his parents and brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck involved in
this vehicular accident is insured with the Travellers Multi Indemnity Corporation
covering own damage and third-party liability, under vehicle policy No. 11723 (Exh. "1")
dated May 30, 1978; that after he filed the insurance claim the insurance company paid
him the sum of P18,000.00 for the damages sustained by this truck but not the third
party liability.
DANIEL SERRANO, defendant driver, declared that he gave a statement before the
municipal police of Bagabag, Nueva Vizcaya on May 16, 1979; that he knew the
responsibilities of a driver; that before leaving, he checked the truck. The truck owner
used to instruct him to be careful in driving. He bumped the truck being repaired by
Pedro Layugan, plaintiff, while the same was at a stop position. From the evidence
presented, it has been established clearly that the injuries sustained by the plaintiff was
caused by defendant's driver, Daniel Serrano. The police report confirmed the allegation
of the plaintiff and admitted by Daniel Serrano on cross-examination. The collision
dislodged the jack from the parked truck and pinned the plaintiff to the ground. As a
result thereof, plaintiff sustained injuries on his left forearm and left foot. The left leg of
the plaintiff from below the knee was later on amputated (Exh. "C") when gangrene had
set in, thereby rendering him incapacitated for work depriving him of his income. (pp.
118 to 120, Record on Appeal.)
xxx xxx xxx
Upon such findings, amply supported by the evidence on record, the trial court rendered its decision,
the dispositive part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is hereby ordered:
a) To pay the plaintiff
compensatory damages;

SEVENTY

THOUSAND

(P70,000.00)

PESOS

actual

and

b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;

c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and
d) To pay the costs of this suit. On the third-party complaint, the third-party defendant
is ordered to indemnify the defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and compensatory
damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and
dismissed the complaint, the third-party complaint, and the counter- claims of both appellants. 7

Hence, this petition.

The petitioner alleges the following errors.

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE COURT ACTED
CORRECTLY IN REVERSING AND SETTING ASIDE AND DISMISSING THE PLAINTIFFAPPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN APPLYING
THE DOCTRINE OF "RES IPSA LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic)
BASIS.
The crux of the controversy lies in the correctness or error of the decision of the respondent court
finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for itself).
Corollary thereto, is the question as to who is negligent, if the doctrine is inapplicable.

<re||

an1w>

The respondent corporation stresses that the issues raised in the petition being factual, the same is
not reviewable by this Court in a petition for review by certiorari. 9
Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its findings of
fact are entitled to great respect and will not ordinarily be disturbed by this Court. 10 For if we have to
review every question of fact elevated to us, we would hardly have any more time left for the weightier
issues compelling and deserving our preferential attention. 11 Be that as it may, this rule is not inflexible.
Surely there are established exceptions 12 when the Court should review and rectify the findings of fact of
the lower court, such as:
1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the
inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is
based on misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case if the
findings are contrary to the admission of both the appellant and the appellee; 6) the findings of the
Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are conclusions
without citation of specific evidence on which they are based; 8) the facts set forth in the petition as
well as in the petitioner's main and reply briefs are not disputed by the respondents; and 9) when the
findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted
on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general rule.
From its finding that the parked truck was loaded with ten (10) big round logs 13 the Court of Appeals
inferred that because of its weight the truck could not have been driven to the shoulder of the road and
concluded that the same was parked on a portion of the road 14 at the time of the accident. Consequently,
the respondent court inferred that the mishap was due to the negligence of the driver of the parked
truck. 15 The inference or conclusion is manifestly erroneous. In a large measure, it is grounded on
speculation, surmise, or conjecture. How the respondent court could have reversed the finding of the trial
court that a warning device was installed 16 escapes us because it is evident from the record that really
such a device, in the form of a lighted kerosene lamp, was installed by the driver of the parked truck three
to four meters from the rear of his parked truck. 17 We see this negative finding of the respondent appellate
court as a misreading of the facts and the evidence on record and directly contravening the positive finding
of the trial court that an early warning device was in proper place when the accident happened and that the
driver of the private respondent was the one negligent. On the other hand, the respondent court, in
refusing to give its "imprimatur to the trial court's finding and conclusion that Daniel Serrano (private
respondent Isidro's driver) was negligent in driving the truck that bumped the parked truck", did not cite
specific evidence to support its conclusion. In cavalier fashion, it simply and nebulously adverted to
unspecified "scanty evidence on record." 18
On the technical aspect of the case, the respondent corporation would want us to dismiss this petition
on the ground that it was filed out of time. It must be noted that there was a motion for

extension, 19 albeit filed erroneously with the respondent court, dated March 19, 1986, requesting for 30
days from March 20, 1986, to file the necessary petition or pleading before the Supreme Court". Also, on
April 1, 1986, an appearance of a new lawyer for the petitioner before the Supreme Court" with
motion 20 was filed, again erroneously, with the Court of Appeals, requesting for 20 days extension "to file
the Petition for Review on Certiorari." Likewise a similar motion 21 was filed with this Court also on April 1,
1986. On the other hand, the instant petition for review was filed on April 17, 1986 22 but it was only after
three months, on August 1, 1986, in its comment 23 that the respondent corporation raised the issue of
tardiness. The respondent corporation should not have waited in ambush before the comment was required
and before due course was given. In any event, to exact its "a pound of flesh", so to speak, at this very
late stage, would cause a grave miscarriage of justice. Parenthetically, it must be noted that private
respondent Isidro did not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and reasonable man would not do 24 or as
Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury. 25
In Picart vs. Smith,

26

decided more than seventy years ago but still a sound rule, we held:

The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of the actor in the situation before him. The
Law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.
Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses
serious danger to a moving vehicle which has the right to be on the highway. He argues that since the
parked cargo truck in this case was a threat to life and limb and property, it was incumbent upon the
driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise extreme care
so that the motorist negotiating the road would be properly forewarned of the peril of a parked
vehicle. Isidro submits that the burden of proving that care and diligence were observed is shifted to
the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to be on the road, while
the immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro proffers that the
petitioner must show to the satisfaction of a reasonable mind that the driver and he (petitioner)
himself, provided an early warning device, like that required by law, or, by some other adequate
means that would properly forewarn vehicles of the impending danger that the parked vehicle posed
considering the time, place, and other peculiar circumstances of the occasion. Absent such proof of
care, as in the case at bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur, evoke the
presumption of negligence on the part of the driver of the parked cargo truck as well as his helper, the
petitioner herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters from the rear of the parked truck, a lighted
kerosene lamp was placed. 28 Moreover, there is the admission of respondent Isidro's driver, Daniel
Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)Will you narrate to me in brief how the
accident happens (sic) if you can still remember?

Answer: (by Daniel Serrano)

That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at
Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met another vehicle
who (sic) did not dim his (sic) lightswhich cause (sic) me to be blinded
with intense glare of the light that's why I did not notice a parked truck
who (sic) was repairing a front flat tire. When I was a few meters away, I
saw the truck which was loaded with round logs. I step (sic) on my foot
brakes but it did not function with my many attempts. I have (sic) found
out later that the fluid pipe on the rear right was cut that's why the breaks
did not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on half the shoulder of the right side of the
road would be of no moment taking into account the warning device consisting of the lighted kerosene
lamp placed three or four meters from the back of the truck. 30 But despite this warning which we rule
as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the private respondent, still bumped
the rear of the parked cargo truck. As a direct consequence of such accident the petitioner sustained
injuries on his left forearm and left foot. His left leg was later amputated from below the knee when
gangrene had set in. 31
It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has been
established by clear and convincing evidence. It follows that in stamping its imprimatur upon the
invocation by respondent Isidro of the doctrine of Res ipsa loquitur to escape liability for the
negligence of his employee, the respondent court committed reversible error.
The respondent court ruled:

32

xxx xxx xxx

In addition to this, we agree with the following arguments of appellant Godofredo Isidro
which would show that the accident was caused due to the negligence of the driver of
the cargo truck:
xxx xxx xxx
... In the case at bar the burden of proving that care and diligence was
(sic) observed is shifted evidently to the plaintiff, for, as adverted to, the
motorists have the right to be on the road, while the immobile truck has no
business, so to speak, to be there. It is thus for the plaintiff to show to the
satisfaction of a reasonable mind that the driver and he himself did employ
early warning device such as that required by law or by some other
adequate means or device that would properly forewarn vehicles of the
impending danger that the parked vehicle posed considering the time,
place and other peculiar circumstances of the occasion. Absent such proof
of care, as in the case at bar, will evoke the presumption of negligence
under the doctrine of res ipsa loquitur, on the part of the driver of the
parked cargo truck as well as plaintiff who was fixing the flat tire of said
truck. (pp. 14-17, Appellant's Brief). (Emphasis supplied).
At this juncture, it may be enlightening and helpful in the proper resolution of the issue of negligence
to examine the doctrine of Res ipsa loquitur.
This doctrine 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. 33 Or as Black's
Law Dictionary 34 puts it:

Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference that
defendant was negligent, which arises upon proof that instrumentality causing injury
was in defendant's exclusive control, and that the accident was one which ordinarily
does not happen in absence of negligence. Res ipsa loquitur is rule of evidence whereby
negligence of alleged wrongdoer may be inferred from mere fact that accident happened
provided character of accident and circumstances attending it lead reasonably to belief
that in absence of negligence it would not have occurred and that thing which caused
injury is shown to have been under management and control of alleged
wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under
doctrine of "res ipsa loquitur" the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence that injury was caused by an
agency or instrumentality under exclusive control and management of defendant, and
that the occurrence was such that in the ordinary course of things would not happen if
reasonable care had been used.
In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et al. vs.
Caltex, Inc., et al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs. CA. 36
The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. 37 The doctrine is not a rule of substantive law 38 but merely a
mode of proof or a mere procedural convenience. 39 The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and does not dispense with the requirement of proof
of culpable negligence on the part of the party charged. 40 It merely determines and regulates what shall be
prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due
care. 41 The doctrine can be invoked when and only when, under the circumstances involved, direct
evidence is absent and not readily available. 42 Hence, it has generally been held that the presumption of
inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and
testifies or presents evidence as to the specific act of negligence which is the cause of the injury
complained of or where there is direct evidence as to the precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly appear. 43 Finally, once the actual cause of injury is
established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will be
involved and the doctrine becomes inapplicable when the circumstances have been so completely
eludicated that no inference of defendant's liability can reasonably be made, whatever the source of the
evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil
Code. In the latter, when an injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the part of the master or employer
either in the selection of the servant or employee, or in supervision over him after selection, or both.
Such presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If
follows necessarily that if the employer shows to the satisfaction of the court that in the selection and
in the 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. 45 In disclaiming liability for the incident, the
private respondent stresses that the negligence of his employee has already been adequately overcome by
his driver's statement that he knew his responsibilities as a driver and that the truck owner used to instruct
him to be careful in driving. 46
We do not agree with the private respondent in his submission. In the first place, it is clear that the
driver did not know his responsibilities because he apparently did not check his vehicle before he took
it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right was cut,
and could have repaired it and thus the accident could have been avoided. Moveover, to our mind, the
fact that the private respondent used to intruct his driver to be careful in his driving, that the driver
was licensed, and the fact that he had no record of any accident, as found by the respondent court,
are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts
established at the trial 47 The private respondent or his mechanic, who must be competent, should have
conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of the

circumstances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father
of a family in the supervision of his employees which would exculpate him from solidary liability with his
driver to the petitioner. But even if we concede that the diligence of a good father of a family was observed
by Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance by
Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be directly in
charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of
proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel
Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck
and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article
2180, paragraph 5, of the Civil Code has not ceased.

WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well as its
Resolution denying the petitioner's motion for reconsideration are hereby SET ASIDE and the decision
of the trial court, dated January 20, 1983, is hereby REINSTATED in toto. With costs against the
private respondents.
SO ORDERED.
Melencio-Herrera, (Chairman), Paras and Padilla, JJ., concur.
G.R. No. L-12219

March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum
of P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From
a judgment of the Court of First Instance of the Province of La Union absolving the defendant from
liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve
miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before him was not observing the
rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely
up against the railing on the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper side of the road
for the machine. In so doing the defendant assumed that the horseman would move to the other side.
The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop.
Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet
some distance away or slowing down, continued to approach directly toward the horse without
diminution of speed. When he had gotten quite near, there being then no possibility of the horse
getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape
hitting the horse alongside of the railing where it as then standing; but in so doing the automobile
passed in such close proximity to the animal that it became frightened and turned its body across the

bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the
flange of the car and the limb was broken. The horse fell and its rider was thrown off with some
violence. From the evidence adduced in the case we believe that when the accident occurred the free
space where the pony stood between the automobile and the railing of the bridge was probably less
than one and one half meters. As a result of its injuries the horse died. The plaintiff received
contusions which caused temporary unconsciousness and required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider would pass over to the proper side;
but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to
an immediate stop or, seeing that there were no other persons on the bridge, to take the other side
and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this,
the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into
doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here confronted him. When the
defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of
the law.
The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the personal judgment of
the actor in the situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in the
particular case. Abstract speculations cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them to suggest or warn of danger. Could
a prudent man, in the case under consideration, foresee harm as a result of the course actually
pursued? If so, it was the duty of the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion, have
recognized that the course which he was pursuing was fraught with risk, and would therefore have
foreseen harm to the horse and the rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the problem always is to discover which
agent is immediately and directly responsible. It will be noted that the negligent acts of the two
parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of
the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has

the last fair chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of
the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge
in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars
which were hauled along a narrow track. At certain spot near the water's edge the track gave way by
reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was
in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of the typhoon which had dislodged one of the
supports of the track. The court found that the defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the car instead of being in front or behind. It was
held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to
keep the track in proper repair nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in
that case consisted in an omission only. The liability of the company arose from its responsibility for
the dangerous condition of its track. In a case like the one now before us, where the defendant was
actually present and operating the automobile which caused the damage, we do not feel constrained
to attempt to weigh the negligence of the respective parties in order to apportion the damage
according to the degree of their relative fault. It is enough to say that the negligence of the defendant
was in this case the immediate and determining cause of the accident and that the antecedent
negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for
the offense mentioned would be res adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of
the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See
U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and
lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff
are remote or otherwise of such character as not to be recoverable. So ordered.
Arellano,
C.J.,
Torres,
Johnson, J., reserves his vote.

Carson,

Araullo,

Avancea,

and

Fisher,

JJ., concur.

Separate Opinions
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 where the negligence of the plaintiff is
concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in a

situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery. But
Justice Street finds as a fact that the negligent act of the interval of time, and that at the moment the
plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule is
applicable. In other words, when a traveler has reached a point where he cannot extricate himself and
vigilance on his part will not avert the injury, his negligence in reaching that position becomes the
condition and not the proximate cause of the injury and will not preclude a recovery. (Note especially
Aiken vs. Metcalf [1917], 102 Atl., 330.)
G.R. No. L-7664

August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of
P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of
their son Dominador Ong in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that
his death was caused by his own negligence or by unavoidable accident. Defendant also avers that it
had exercised due diligence in the selection of, and supervision over, its employees and that it had
observed the diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint
without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because
the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon
City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children
is charged. The main pool it between two small pools of oval shape known as the "Wading pool" and
the "Beginners Pool." There are diving boards in the big pools and the depths of the water at different
parts are indicated by appropriate marks on the wall. The care and supervision of the pools and the
users thereof is entrusted to a recreational section composed of Simeon Chongco as chief, Armando
Rule, a male nurse, and six lifeguards who had taken the life-saving course given by the Philippine
Red Cross at the YMCA in Manila. For the safety of its patrons, defendant has provided the pools with
a ring buoy, toy roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector who
is in charge of a clinic established for the benefit of the patrons. Defendant has also on display in a
conspicuous place certain rules and regulations governing the use of the pools, one of which prohibits
the swimming in the pool alone or without any attendant. Although defendant does not maintain a
full-time physician in the swimming pool compound, it has however a nurse and a sanitary inspector
ready to administer injections or operate the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school
student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools.
This was not the first time that the three brothers had gone to said natatorium for they had already
been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying
the requisite admission fee, they immediately went to one of the small pools where the water was
shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in
an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the
bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the
pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abao and Mario Villanueva. The tour of duty of Abao was from 8:00 to

12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30
a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty
bathers inside the pool area and Manuel Abao was going around the pools to observe the bathers in
compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of
Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy
informed lifeguard Manuel Abao of the same happening and Abao immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom. The
body was placed at the edge of the pool and Abao immediately applied manual artificial respiration.
Soon after, male nurse Armando Rule came to render assistance, followed by sanitary inspector
Iluminado Vicente who, after being called by phone from the clinic by one of the security guards,
boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he injected
the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao
from the University of the Philippines. Meanwhile, Abao continued the artificial manual respiration,
and when this failed to revive him, they applied the resuscitator until the two oxygen tanks were
exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of
no use because he found the boy already dead. The doctor ordered that the body be taken to the
clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department
of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los
Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the
deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with
fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and
brownish fluid in the stomach. The death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The
first article provides that "whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damages done." Such fault or negligence is called quasi-delict.
Under the second article, this obligation is demandable not only for one's own acts or omissions but
also for those of persons for whom one is responsible. In addition, we may quote the following
authorities cited in the decision of the trial court:
"The rule is well settled that the owners of resorts to which people generally are expressly or
by implication invited are legally bound to exercise ordinary care and prudence in the
management and maintenance of such resorts, to the end of making them reasonably safe for
visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of
ordinary care in providing for his safety, without the fault of the patron, he is not, however, in
any sense deemed to be the insurer of the safety of patrons. And the death of a patron within
his premises does not cast upon him the burden of excusing himself from any presumption of
negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co.,
161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could
be no recovery for the death by drowning of a fifteen-year boy in defendant's natatorium,
where it appeared merely that he was lastly seen alive in water at the shallow end of the pool,
and some ten or fifteen minutes later was discovered unconscious, and perhaps lifeless, at the
bottom of the pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence, the principle to be
observed is that the person claiming damages has the burden of proving that the damage is caused
by the fault or negligence of the person from whom the damage is claimed, or of one of his employees
(Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that
arises is: Have appellants established by sufficient evidence the existence of fault or negligence on the
part of appellee so as to render it liable for damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to take the necessary
precaution to protect the lives of its patrons by not placing at the swimming pools efficient and
competent employees who may render help at a moment's notice, and they ascribed such negligence
to appellee because the lifeguard it had on the occasion minor Ong was drowning was not available or
was attending to something else with the result that his help came late. Thus, appellants tried to
prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad,
Jr. detected that there was a drowning person in the bottom of the big swimming pool and shouted to
the lifeguard for help, lifeguard Manuel Abao did not immediately respond to the alarm and it was
only upon the third call that he threw away the magazine he was reading and allowed three or four
minutes to elapse before retrieving the body from the water. This negligence of Abao, they contend,
is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard Abao, but is belied
by the written statements given by them in the investigation conducted by the Police Department of
Quezon City approximately three hours after the happening of the accident. Thus, these two boys
admitted in the investigation that they narrated in their statements everything they knew of the
accident, but, as found by the trial, nowhere in said statements do they state that the lifeguard was
chatting with the security guard at the gate of the swimming pool or was reading a comic magazine
when the alarm was given for which reason he failed to immediately respond to the alarm. On the
contrary, what Ruben Ong particularly emphasized therein was that after the lifeguard heard the
shouts for help, the latter immediately dived into the pool to retrieve the person under water who
turned out to be his brother. For this reason, the trial court made this conclusion: "The testimony of
Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abao to immediately
respond to their call may therefore be disregardedbecause they are belied by their written
statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has taken all necessary
precautions to avoid danger to the lives of its patrons or prevent accident which may cause their
death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy, toy
roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted
with black colors so as to insure clear visibility. There is on display in a conspicuous place within the
area certain rules and regulations governing the use of the pools. Appellee employs six lifeguards who
are all trained as they had taken a course for that purpose and were issued certificates of proficiency.
These lifeguards work on schedule prepared by their chief and arranged in such a way as to have two
guards at a time on duty to look after the safety of the bathers. There is a male nurse and a sanitary
inspector with a clinic provided with oxygen resuscitator. And there are security guards who are
available always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the bottom of the pool,
the employees of appellee did everything possible to bring him back to life. Thus, after he was placed
at the edge of the pool, lifeguard Abao immediately gave him manual artificial respiration. Soon
thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who brought
with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the
inspector immediately injected him with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until its contents were exhausted. And while
all these efforts were being made, they sent for Dr. Ayuyao from the University of the Philippines who
however came late because upon examining the body he found him to be already dead. All of the
foregoing shows that appellee has done what is humanly possible under the circumstances to restore
life to minor Ong and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of much help,
appellants now switch to the theory that even if it be assumed that the deceased is partly to be
blamed for the unfortunate incident, still appellee may be held liable under the doctrine of "last clear
chance" for the reason that, having the last opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the record does not show how minor Ong
came into the big swimming pool. The only thing the record discloses is that minor Ong informed his
elder brothers that he was going to the locker room to drink a bottle of coke but that from that time
on nobody knew what happened to him until his lifeless body was retrieved. The doctrine of last clear
chance simply means that the negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by exercising reasonable care and prudence,
might have avoided injurious consequences to claimant notwithstanding his negligence. Or, "As the
doctrine usually is stated, a person who has the last clear chance or opportunity of avoiding an
accident, notwithstanding the negligent acts of his opponent or the negligence of a third person which
is imputed to his opponent, is considered in law solely responsible for the consequences of the
accident." (38 Am. Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself in the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the problem always is to discover
which agent is immediately and directly responsible. It will be noted that the negligent acts of
the two parties were not contemporaneous, since the negligence of the defendant succeeded
the negligence of the plaintiff by an appreciable interval. Under these circumstances, the law is
that a person who has the last clear chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of the other party.
(Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming pool and it being apparent that he
went there without any companion in violation of one of the regulations of appellee as regards the use
of the pools, and it appearing that lifeguard Aba__o responded to the call for help as soon as his
attention was called to it and immediately after retrieving the body all efforts at the disposal of
appellee had been put into play in order to bring him back to life, it is clear that there is no room for
the application of the doctrine now invoked by appellants to impute liability to appellee..
The last clear chance doctrine can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand
after the peril is or should have been discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have contributed to the injury. O'Mally vs.
Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the trial court, which we find supported
by the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by
both parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in so
doing he might have hit or bumped his forehead against the bottom of the pool, as a consequence of
which he was stunned, and which to his drowning. As a boy scout he must have received instructions
in swimming. He knew, or have known that it was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes, J. B. L., Endencia and
Felix, JJ.,concur.