Toda Compiled Cases PDF

SECOND DIVISION
[G.R. No. 77679. September 30, 1987.]
VICENTE VERGARA, petitioner, vs. THE COURT OF APPEALS

and AMADEO AZARCON, respondents.
RESOLUTION
PADILLA, J : p
An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was
filed by private respondent against petitioner. The action arose from a vehicular
accident that occurred on 5 August 1979 in Gapan, Nueva Ecija, when Martin
Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-on" the
store-residence of the private respondent, causing damages thereto which were
inventoried and assessed at P53,024.22.
In his answer to the complaint, the petitioner alleged principally: "that his
driver Martin Belmonte operated said cargo truck in a very diligent (and) careful
manner; that the steering wheel refused to respond to his effort and as a result of a
blown-out tire and despite application of his brakes, the said cargo truck hit the
store-residence of plaintiff (private respondent) and that the said accident was an act
of God for which he cannot be held liable." 1(1)
Petitioner also filed a third party complaint against Travellers Insurance and
Surety Corporation, alleging that said cargo truck involved in the vehicular accident,
belonging to the petitioner, was insured by the third party defendant insurance
company. Petitioner asked that the latter be ordered to pay him whatever amount he
may be ordered by the court to pay to the private respondent. LLphil
The trial court rendered judgment in favor of private respondent. Upon appeal
to the Court of Appeals, the latter court affirmed in toto the decision of the trial court,
Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 1
which ordered petitioner to pay, jointly and severally with Travellers Insurance and
Surety Corporation, to the private respondent the following: (a) P53,024.22 as actual
damages; (b) P10,000.00 as moral damages; (c) P10,000.00 as exemplary damages;
and (d) the sum of P5,000.00 for attorney's fees and the costs. On the third party
complaint, the insurance company was sentenced to pay to the petitioner the
following: (a) P50,000.00 for third party liability under its comprehensive accident
insurance policy; and (b) P3,000.00 for and as attorney's fees. prLL
Hence, this petition for review on certiorari.
Petitioner's contention that the respondent court erred in finding him guilty of
fault or negligence is not tenable. It was established by competent evidence that the
requisites of a quasi-delict are present in the case at bar. These requisites are: (1)
damages to the plaintiff; (2) negligence, by act or omission, of which defendant, or
some person for whose acts he must respond, was guilty; and (3) the connection of
cause and effect between such negligence and the damages. LibLex
It is undisputed that private respondent suffered damages as a result of an act

or omission of petitioner. The issue of whether or not this act or omission can be
considered as a "negligent" act or omission was passed upon by the trial court. The
findings of said court, affirmed by the respondent court, which we are not prepared to
now disturb, show that the fact of occurrence of the "vehicular accident" was
sufficiently established by the police report and the testimony of Patrolman Masiclat.
And the fact of negligence may be deduced from the surrounding circumstances
thereof. According to the police report, "the cargo truck was travelling on the right
side of the road going to Manila and then it crossed to the center line and went to the
left side of the highway; it then bumped a tricycle; and then another bicycle; and then
said cargo truck rammed the storewarehouse of the plaintiff." 2(2)
According to the driver of the cargo truck, he applied the brakes but the latter
did not work due to mechanical defect. Contrary to the claim of the petitioner, a
mishap caused by defective brakes cannot be considered as fortuitous in character.
Certainly, the defects were curable and the accident preventable.
Furthermore, the petitioner failed to adduce any evidence to overcome the

disputable presumption of negligence on his part in the selection and supervision of
his driver.
Based on the foregoing finding by the respondent Court that there was
negligence on the part of the petitioner, the petitioner's contention that the respondent
court erred in awarding private respondent actual, moral and exemplary damages as
well as attorney's fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.
Yap, Melencio-Herrera, Paras and Sarmiento, JJ., concur.
Footnotes
1. Rollo, p. 26.
2. Rollo, p. 30.

Endnotes
1 (Popup - Popup)
1. Rollo, p. 26.
2 (Popup - Popup)
2. Rollo, p. 30.

SECOND DIVISION
[G.R. Nos. L-10308 & L-10385-88. April 30, 1957.]
MARIA PAZ S. ALBA, ETC., ET AL., petitioners, vs. DR.

HORACIO BULAONG, ET AL., ETC., respondents.
Abad Santos & Pablo for petitioners.

Antonio C. Masaquel and Adaucto P. Ocampo for respondents.
SYLLABUS
1. WORKMEN'S COMPENSATION LAW; INJURED EMPLOYEE MAY

NOT RECOVER TWICE FOR SAME INJURY. — The plain intent of Section 6 of
the Workmen's Compensation Law is that an injured employee shall not receive
payment twice for the same injury (from the third party and from the employer).
2. ID.; ID.; INJURED EMPLOYEE ENTITLED TO FULL

COMPENSATION. — Where the injured employee is offered, by the third party,
compensation which he deems insufficient, he may reject it and thereafter litigate
with such party; or choose instead to complain against his employer; or accept such
insufficient compensation but expressly reserving at the same time his right to recover
additional damages from his employer. In the latter case the amount received from the
third party shall be deducted from the amount payable by the employer.
DECISION
BENGZON, J : p
This is a petition to reverse the decision of the Commissioner of the

Workmen's Compensation Commission in five cases denying the claims for
compensation, against Dr. Horacio Bulaong, of herein petitioners, who were his
employees and dependents of his employees.
On March 12, 1955, petitioners Gregorio de la Cruz, Pedro C. Bulaong and

Pacifico Bulaong were employees of Dr. Horacio Bulaong in his business of threshing
palay. Other employees were Engracio Alba (husband of petitioner Maria Paz S.
Alba) and Vicente A. Sebastian (husband of petitioner Elisea S. Sebastian). Early in
the morning of that day said five employees were, upon specific orders of Dr.
Bulaong, on their way to Barrio Baringan, Malolos, Bulacan, to thresh palay, riding
on a tractor which was pulling a threshing machine. Suddenly a speeding bus of the
Victory Liner Inc. collided with the thresher which in turn hit the tractor, and as a
result those on board were violently thrown out. Engracio Alba and Vicente Sebastian
died; Gregorio de la Cruz, Pedro C. Bulaong and Pacifico Bulaong sustained physical
injuries.
WHEREFORE, five separate claims were filed before the Workmen's

Compensation Commission against the employer Dr. Bulaong. Three defenses were
set up by him: (a) claimants were not his employees, but industrial partners, (b) the
injuries were not sustained in the course of employment and (c) the claims, if any, had
been extinguished by virtue of the monetary settlements which petitioners had
concluded with the Victory Liner Inc.
The referee overruled the defenses, having found the five men to be employees
who had died or were injured in the course of employment. Consequently he required
the employer to make compensation in the amounts specified in his award. However
on appeal, the Workmen's Compensation Commissioner absolved Dr. Bulaong from
all liability, because he found that the claimants had received, after the mishap,
various amounts of money from the owner of the colliding bus, the Victory Liner Inc.,
each of them having executed a written release or waiver in favor of said Liner, the
pertinent part of which reads as follows:
"And I likewise freely and completely cede and transfer into said
Company (Victory Liner Inc.) any right given to me by law against any person
or company that should be liable for the said accident except my right to claim
against Dr. Horacio Bulaong in accordance with and under the Workmen's
Compensation Act (Rep. Act 772)."
Claimants, the Commissioner declared, had elected to hold the Liner

responsible for the accident, and could not thereafter turn around to recover
compensation from their employer. He cited section 6 of the Workmen's
Compensation Law, which for convenience is quoted:
"SEC. 6. Liability of third parties. — In case an employee suffers an

injury for which compensation is due under this Act by any other person besides
his employer, it shall be optional with such injured employee either to claim
compensation from his employer, under this Act, or sue such other person for
damages, in accordance with law; and in case compensation is claimed and
allowed in accordance with this Act, the employer who paid such compensation
or was found liable to pay the same, shall succeed the injured employee to the
right of recovering from such person what he paid: Provided, That in case the
employer recovers from such third person damages in excess of those paid or
allowed under this Act, such excess shall be delivered to the injured employee
or any other person entitled thereto, after deduction of the expenses of the
employer and the costs of the proceedings. The sum paid by the employer for
compensation or the amount of compensation to which the employee or his
dependents are entitled under the provisions of this Act, shall not be admissible
as evidence in any damage suit or action." (As amended.)
Naturally the argument before this Court dwelt mostly on the interpretation of
the above section and its application to the circumstances of record. There was no
election, petitioners contend, to recover from the Liner to the exclusion of Dr.
Bulaong, because the document itself signed by petitioners reserved their right to
claim against Dr. Horacio Bulaong under the Workmen's Compensation Act."
Such reservation, counter the respondents, besides being void and against the
law, cannot bind Dr. Bulaong who was not a party to the instrument.
There is no question that the Liner was a "third party" within the meaning of
section 6. There is also no question that petitioner have not sued the Liner for
damages. Wherefore they are not deemed to have made the election specified in
section 6. However, the plain intent of the law is that they shall not receive payment
twice for the same injuries (from the third party and from the employer). Hence if
without suing they receive full damages from the third party, they should be deemed
to have practically made the election under the law, and should be prevented from
thereafter suing the employer. Full damages means, of course what they would have
demanded in a suit against the third party or what they would receive in a
compensation as complete settlement. Needless to say, where the injured employee is
offered, by the third party, compensation which he deems insufficient, he may reject it
and thereafter litigate with such third party. Or choose instead to complain against his
employer.
Nevertheless there is nothing in the law to prevent him from accepting such
insufficient compensation but expressly reserving at the same time his right to recover
additional damages from his employer. If the third party agrees to the reservation,
such partial payment may legally be made and accepted. We say "if", because the
reservation necessarily entails some disadvantage to the third party, inasmuch as
pursuant to legal principles when the employer subsequently pays, he may in turn
recover from the third party (See sec. 6). The employer can not validly object to such
reservation by the employee, because in effect the settlement helps to reduce the
amount he will afterwards have to disgorge.
As we see it, the five employees' acceptance of the Victory Liner's offer of
compensation, under the circumstances disclosed by this record, especially the written
acknowledgments, showed they were not content with the amount received - they did
not consider it sufficient — so they reserved their right to require additional
compensation from their employer. Hence their action against Dr. Bulaong is not
barred by section 6. He may in turn demand reimbursement from Victory Liner Inc.
The implied reservation of Dr. Bulaong's right against Victory Liner Inc. is not
unprecedented in the realm of jurisprudence. When a promissory note is dishonored
for non-payment, the holder may recover its value either from the maker or from the
indorser. If he sues the indorser and recovers, the latter may in turn recoup from the
maker. The statute expressly permits him to renounce his right against the maker and
reserve his right to recover from the indorser (Sec. 120 (e) Negotiable Instruments
Law). When that happens, the courts say the indorser's right to recover from the
maker is also reserved. (Bootman's Sav. Bank vs. Johnson, 24 Mo. App. 317;
Tolentino Commercial Laws Vol. I (7th Ed.) p. 361. 1(1) )
In the situation resulting after the collision, we could regard the five
employees, the Victory Liner and Dr. Bulaong in the same juridical position,
respectively, of holder, maker and indorser. The release with express reservation
produced the implied reservation already stated.
What then, it may be asked, was the advantage accruing to the Liner from the
settlement it had worked to accomplish? For one thing its driver would not be
prosecuted by petitioners; besides earning such driver's gratitude, the Liner thereby
avoided losses in time and services. For another, even if afterwards it should be liable
to the employer for whatever the latter might have to satisfy, the Liner could expect
the settlement between employer and employees to be reasonable considering their
relationship, more reasonable perhaps than a settlement between itself and the injured
employees.
It is therefore our view that the moneys received from Victory Liner Inc. did
not necessarily have the effect of releasing Dr. Bulaong. Inasmuch as the five men
were his employees, and they were injured by reason of and in the course of their
employment, he must pay compensation to be fixed in accordance with law. Bearing
in mind, however, the law's intention not to give double compensation, the amounts
they have received from the Victory Liner shall be deducted from the sums so
determined.
In this connection we notice that the referee who has investigated the matter
has made some calculations of monetary award. However they were not passed upon
by the Commissioner.
Wherefore, for the purpose of ascertaining and awarding such compensation to

petitioners, the record will be remanded to the Workmen's Compensation
Commission for further action in accordance with this opinion. No costs. So ordered.
Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia and

Felix, JJ., concur.
Montemayor, J., concurs in the result.
Footnotes
1. The same implied reservation is admitted where holder of negotiable instrument
waives right against first indorser but reserves his right to sue the second indorser.
The latter's right against first indorser is impliedly reserved.

Endnotes
1 (Popup - Popup)
1. The same implied reservation is admitted where holder of negotiable instrument
waives right against first indorser but reserves his right to sue the second indorser.
The latter's right against first indorser is impliedly reserved.

SECOND DIVISION
[G.R. No. 122039. May 31, 2000.]
VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA

JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.
Leo B. Diocos for petitioner.

Enrique S. Empleo for E.J. Sunga.
Eduardo T. Sedillo for F. Salva.
SYNOPSIS
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 that bumped their passenger jeepney.
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 quasi-delict, 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, the Court of Appeals reversed the ruling of the
lower court 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. Hence,
this petition.
It is immaterial that the proximate cause of the collision between the jeepney
and the truck was the negligence of the truck driver. The doctrine of proximate cause
is applicable only in actions for quasi-delict, not in actions involving breach of
contract. 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
observed extraordinary diligence in the care of his passengers. 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 showed he was actually negligent in transporting
passengers. The decision of the Court of Appeals was, affirmed, with the modification
that the award of moral damages was deleted.
SYLLABUS
1. CIVIL LAW; TORTS AND DAMAGES; QUASI-DELICT AND

BREACH OF CONTRACT; DISTINGUISHED; CASE AT BAR. — 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. The second, 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. 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.
2. ID.; ID.; ID.; DOCTRINE OF PROXIMATE CAUSE; NOT

APPLICABLE IN ACTIONS INVOLVING BREACH OF CONTRACT;
RATIONALE. — The doctrine of proximate cause is applicable only in actions for
quasi-delict, not in actions involving breach of contract. The doctrine is a device for
imputing liability to a person where there is no relation between him and another
party. In such a case, the obligation is created by law itself. But, where there is a
pre-existing contractual relation between the parties, it is the parties themselves who
create the obligation, and the function of the law is merely to regulate the relation thus
created. 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.

3. ID.; ID.; ID.; CASO FORTUITO; DEFINED; REQUIREMENTS
THEREOF. — A caso fortuito is an event which could not be foreseen, or which,
though foreseen, was inevitable. 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. Petitioner should have foreseen the danger of
parking his jeepney with its body protruding two meters into the highway.
4. ID.; DAMAGES; MORAL DAMAGES; WHEN IT MAY BE

RECOVERED. — 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. 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. SCDaET
DECISION
MENDOZA, J : p
This is a petition for review on certiorari of the decision 1(1) 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. prLL
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. dctai
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 quasi-delict, 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 plaintiff-appellant:
(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. prLL
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. The second, 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(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 quasi-delict, not in
actions involving breach of contract. The doctrine is a device for imputing liability to
a person where there is no relation between him and another party. In such a case, the
obligation is created by law itself. But, where there is a pre-existing contractual
relation between the parties, it is the parties themselves who create the obligation, and
the function of the law is merely to regulate the relation thus created. 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: llcd
ARTICLE 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. LLjur
ARTICLE 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.
ARTICLE 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:

SECTION 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. LLpr
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(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(4) Petitioner should have foreseen the danger of parking his
jeepney with its body protruding two meters into the highway. dctai
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 Siliman 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."
LLphil
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(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(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. LLpr
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.
Footnotes

1. Per Justice Artemon D. Luna and concurred in by Justices Hector L. Hofilena and
B.A. Adefuin-dela Cruz.
2. See B. BALDERRAMA, THE PHILIPPINE LAW ON TORTS AND DAMAGES 20
(1953).
3. CIVIL CODE, ART. 1174.
4. Juan F. Nakpil & Sons v. Court of Appeals, 144 SCRA 596 (1986); Vasquez v. Court
of Appeals, 138 SCRA 553 (1985); Republic v. Luzon Stevedoring Corp., 128 Phil.
313 (1967).
5. Fores v. Miranda, 105 Phil. 267 (1959); Mercado v. Lira, 3 SCRA 124 (1961).
6. Philippine Rabbit Bus Lines, Inc. v. Esguerra, 117 SCRA 741 (1982); Sabena
Belgian World Airlines v. Court of Appeals, 171 SCRA 620 (1989); China Airlines
Ltd. v. Intermediate Appellate Court, 169 SCRA 226 (1989).

Endnotes
1 (Popup - Popup)
1. Per Justice Artemon D. Luna and concurred in by Justices Hector L. Hofilena and
B.A. Adefuin-dela Cruz.
2 (Popup - Popup)
2. See B. BALDERRAMA, THE PHILIPPINE LAW ON TORTS AND DAMAGES 20
(1953).
3 (Popup - Popup)
3. CIVIL CODE, ART. 1174.
4 (Popup - Popup)
4. Juan F. Nakpil & Sons v. Court of Appeals, 144 SCRA 596 (1986); Vasquez v. Court
of Appeals, 138 SCRA 553 (1985); Republic v. Luzon Stevedoring Corp., 128 Phil.
313 (1967).
5 (Popup - Popup)
5. Fores v. Miranda, 67 105 Phil. 267 (1959); Mercado v. Lira, 3 SCRA 124 (1961).
6 (Popup - Popup)
6. Philippine Rabbit Bus Lines, Inc v. Esguerra, 117 SCRA 741 (1982); Sabena Belgian
World Airlines v. Court of Appeals, 171 SCRA 620(1989); China Airlines Ltd. v.
Intermediate Appellate Court, 169 SCRA 226 (1989).

FIRST DIVISION
[G.R. No. 118889. March 23, 1998.]
FGU INSURANCE CORPORATION, petitioner, vs. COURT OF

APPEALS, FILCAR TRANSPORT, INC., and FORTUNE
INSURANCE CORPORATION, respondents.
Carpio, Ferrer & Evangelista Law Offices and Santiago Arevalo Tomas &
Associates for petitioner.
Nicolas A. Gerochi, Jr. for Filcar, Inc.
SYNOPSIS
This case involves a collision of two cars. One car is owned by Lydia F.
Soriano and driven by Benjamin Jacildone, while the other car is owned by FILCAR
Transport, Inc. and driven by Peter Dahl-Jensen, as lessee. Consequently, petitioner
FGU Insurance Corporation paid Soriano an amount in accordance with their
insurance contract. By way of subrogation, it sued Dahl-Jensen and respondent
FILCAR as well as respondent Fortune Insurance Corporation as insurer of FILCAR
for quasi-delict before the Regional Trial Court of Makati City. The trial court
dismissed the case for failure of petitioner to substantiate its claim of subrogation.
The Court of Appeals affirmed the ruling of the trial court. Petitioner failed to
establish its cause of action for sum of money based on quasi-delict. In this appeal,
petitioner insists that respondents FILCAR and Fortune are liable on the strength of
the Supreme Court ruling that the registered owner of a vehicle is liable for damages
suffered by third persons although the vehicle is leased to another.
This petition was denied by the Supreme Court and the dismissal of the
petitioner's complaint was affirmed. The liability imposed by Art. 2180 of the Civil
Code arises by virtue of a presumption juris tantum of the negligence on the part of
the persons made responsible thereunder, derived from their failure to exercise due
care and vigilance over the acts of subordinates to prevent them from causing
damage. Respondent FILCAR being engaged in a rent-a-car business was only the
owner of the car leased to Dahl-Jensen. As such, there was no vinculum juris between
them as employer and employee. Respondent FILCAR cannot in any way be
responsible for the negligent act of Dahl-Jensen, the former not being the employer of
the latter. The provision of Art. 2184 of the Civil Code is neither applicable because
of the absence of master-driver relationship between respondent FILCAR and
Dahl-Jensen. ACcDEa
SYLLABUS
1. CIVIL LAW; DAMAGES; QUASI-DELICT; DEFINED. — The

pertinent provision is Art. 2176 of the Civil Code which states: "Whoever by act or
omission causes damage to another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict . . ."
2. ID.; ID.; ID.; REQUISITES; NOT PRESENT IN CASE AT BAR. — To

sustain a claim based thereon, the following requisites must concur: (a) damage
suffered by the plaintiff; (b) fault or negligence of the defendant; and (c) connection
of cause and effect between the fault or negligence of the defendant and the damage
incurred by the plaintiff. We agree with respondent court that petitioner failed to
prove the existence of the second requisite, i.e., fault or negligence of defendant
FILCAR, because only the fault or negligence of Dahl-Jensen was sufficiently
established, not that of FILCAR. It should be noted that the damage caused on the
vehicle of Soriano was brought about by the circumstance that Dahl-Jensen swerved
to the right while the vehicle that he was driving was at the center lane. It is plain that
the negligence was solely attributable to Dahl-Jensen thus making the damage
suffered by the other vehicle his personal liability. Respondent FILCAR did not have
any participation therein. ICHcTD
3. ID.; ID.; ID.; PERSONS LIABLE; WHEN CAR OWNER MAY NOT
BE HELD LIABLE; CASE AT BAR. — The liability imposed by Art. 2180 arises by
virtue of a presumption juris tantum of the negligence on the part of the persons made
responsible thereunder, derived from their failure to exercise due care and vigilance
over the acts of subordinates to prevent them from causing damage. Yet, as correctly
observed by respondent court, Art. 2180 is hardly applicable because none of the
circumstances mentioned therein obtains in the case under consideration. Respondent
FILCAR being engaged in a rent-a-car business was only the owner of the car leased
to Dahl-Jensen. As such, there was no vinculum juris between them as employer and
employee. Respondent FILCAR cannot in any way be responsible for the negligent
act of Dahl-Jensen, the former not being the employer of the latter. We now correlate
par. 5 of Art. 2180 with Art. 2184 of the same Code which provides: "In motor
vehicle mishap, the owner is solidarily liable with his driver, if the former , who was
in the vehicle, could have by the use of due diligence, prevented the misfortune . . . If
the owner was not in the motor vehicle, the provisions of Article 2180 are
applicable." Obviously, this provision of Art. 2184 is neither applicable because of
the absence of master-driver relationship between respondent FILCAR and
Dahl-Jensen. Clearly, petitioner has no cause of action against respondent FILCAR
on the basis of quasi-delict; logically, its claim against respondent FORTUNE can
neither prosper. aTEHIC
DECISION
BELLOSILLO, J : p
For damages suffered by a third party, may an action based on quasi-delict

prosper against a rent-a-car company and, consequently, its insurer for fault or
negligence of the car lessee in driving the rented vehicle? LLjur
This was a two-car collision at dawn. At around 3 o'clock of 21 April 1987,

two (2) vehicles, both Mitsubishi Colt Lancers, cruising northward along Epifanio de
los Santos Avenue, Mandaluyong City, figured in a traffic accident. The car bearing
Plate No. PDG 435 owned by Lydia F. Soriano was being driven at the outer lane of
the highway by Benjamin Jacildone, while the other car, with Plate No. PCT 792,
owned by respondent FILCAR Transport, Inc. (FILCAR), and driven by Peter
Dahl-Jensen as lessee, was at the center lane, left of the other vehicle. Upon
approaching the corner of Pioneer Street, the car owned by FILCAR swerved to the
right hitting the left side of the car of Soriano. At that time Dahl-Jensen, a Danish
tourist, did not possess a Philippine driver's license. 1(1)
As a consequence, petitioner FGU Insurance Corporation, in view of its

insurance contract with Soriano, paid the latter P25,382.20. By way of subrogation,
2(2) it sued Dahl-Jensen and respondent FILCAR as well as respondent Fortune
Insurance Corporation (FORTUNE) as insurer of FILCAR for quasi-delict before the
Regional Trial Court of Makati City.
Unfortunately, summons was not served on Dahl-Jensen since he was no

longer staying at his given address; in fact, upon motion of petitioner, he was dropped
from the complaint.

On 30 July 1991 the trial court dismissed the case for failure of petitioner to
substantiate its claim of subrogation. 3(3)
On 31 January 1995 respondent Court of Appeals affirmed the ruling of the

trial court although based on another ground, i.e., only the fault or negligence of
Dahl-Jensen was sufficiently proved but not that of respondent FILCAR. 4(4) In other
words, petitioner failed to establish its cause of action for sum of money based on
quasi-delict.
In this appeal, petitioner insists that respondents are liable on the strength of
the ruling in MYC-Agro-Industrial Corporation v. Vda. de Caldo 5(5) that the
registered owner of a vehicle is liable for damages suffered by third persons although
the vehicle is leased to another.
We find no reversible error committed by respondent court in upholding the

dismissal of petitioner's complaint. The pertinent provision is Art. 2176 of the Civil
Code which states: "Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict . . ."
To sustain a claim based thereon, the following requisites must concur: (a)
damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c)
connection of cause and effect between the fault or negligence of the defendant and
the damage incurred by the plaintiff. 6(6)
We agree with respondent court that petitioner failed to prove the existence of
the second requisite, i.e., fault or negligence of defendant FILCAR, because only the
fault or negligence of Dahl-Jensen was sufficiently established, not that of FILCAR.
It should be noted that the damage caused on the vehicle of Soriano was brought
about by the circumstance that Dahl-Jensen swerved to the right while the vehicle that
he was driving was at the center lane. It is plain that the negligence was solely
attributable to Dahl-Jensen thus making the damage suffered by the other vehicle his
personal liability. Respondent FILCAR did not have any participation therein.
Article 2180 of the same Code which deals also with quasi-delict provides:
The obligation imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is
responsible.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their
company.
Guardians are liable for damages caused by the minors or incapacitated

persons who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise

responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees

and household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special

agent; but not when the damage has been caused by the official to whom the
task done properly pertains, in which case what is provided in article 2176 shall
be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be

liable for damages caused by their pupils and students or apprentices, so long as
they remain in their custody.
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father of a
family to prevent damage.
The liability imposed by Art. 2180 arises by virtue of a presumption juris

tantum of negligence on the part of the persons made responsible thereunder, derived
from their failure to exercise due care and vigilance over the acts of subordinates to
prevent them from causing damage. 7(7) Yet, as correctly observed by respondent
court, Art. 2180 is hardly applicable because none of the circumstances mentioned
therein obtains in the case under consideration. Respondent FILCAR being engaged
in a rent-a-car business was only the owner of the car leased to Dahl-Jensen. As such,
there was no vinculum juris between them as employer and employee. Respondent
FILCAR cannot in any way be responsible for the negligent act of Dahl-Jensen, the
former not being an employer of the latter.
We now correlate par. 5 of Art. 2180 with Art. 2184 of the same Code which
provides: "In motor vehicle mishap, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have by the use of due diligence, prevented
the misfortune . . . If the owner was not in the motor vehicle, the provisions of article
2180 are applicable." Obviously, this provision of Art. 2184 is neither applicable
because of the absence of master-driver relationship between respondent FILCAR
and Dahl-Jensen. Clearly, petitioner has no cause of action against respondent
FILCAR on the basis of quasi-delict; logically, its claim against respondent
FORTUNE can neither prosper.
Petitioner's insistence on MYC-Agro-Industrial Corporation is rooted in a

misapprehension of our ruling therein. In that case, the negligent and reckless
operation of the truck owned by petitioner corporation caused injuries to several
persons and damage to property. Intending to exculpate itself from liability, the
corporation raised the defense that at the time of the collision it had no more control
over the vehicle as it was leased to another; and, that the driver was not its employee
but of the lessee. The trial court was not persuaded as it found that the true nature of
the alleged lease contract was nothing more than a disguise effected by the
corporation to relieve itself of the burdens and responsibilities of an employer. We
upheld this finding and affirmed the declaration of joint and several liability of the
corporation with its driver.
WHEREFORE, the petition is DENIED. The decision of respondent Court of

Appeals dated 31 January 1995 sustaining the dismissal of petitioner's complaint by
the trial court is AFFIRMED. Costs against petitioner.
SO ORDERED. cdasia
Davide, Jr., Vitug, Panganiban and Quisumbing, JJ ., concur.
Footnotes
1. Traffic Accident Investigation Report; Records, p. 130.
2. Subrogation is the substitution of one person in the place of another with reference to
a lawful claim, demand or right, so that he who is substituted succeeds to the rights of
the other in relation to the debt or claim, and its rights, remedies, or securities
(Gerken v. Davidson Grocery Co., 57 Idaho 670, 69 P. 2d 122, 126). Subrogation
denotes the exchange of a third person who has paid a debt in the place of the creditor
to whom he has paid it, so that he may exercise against the debtor all the rights which
the creditor, if unpaid, might have done . . . Insurance companies, guarantors and
bonding companies generally have the right to step into the shoes of the party whom
they compensate and sue any party whom the compensated party could have sued
(Black's Law Dictionary, 6th Ed., St. Paul, Minn., West Publishing Co., p. 1427).
3. Decision penned by Judge Salvador S. Abad Santos, RTC-Br. 65, Makati City,
Records, pp. 204-205.
4. Decision penned by Justice Jaime M. Lantin with the concurrence of Justices Alicia
Austria-Martinez and Conrado M. Vasquez Jr.; Rollo, p. 18.
5. G.R. No. 57298, 7 September 1984, 132 SCRA 10.
6. Andamo v. Intermediate Appellate Court, G.R. No. 74761, 6 November 1990, 191
SCRA 195.
7. Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the
Philippines, 1992 Ed., Vol. V, p. 611.

Endnotes
1 (Popup - Popup)
1. Traffic Accident Investigation Report; Records, p. 130.
2 (Popup - Popup)
2. Subrogation is the substitution of one person in the place of another with reference to
a lawful claim, demand or right, so that he who is substituted succeeds to the rights of
the other in relation to the debt or claim, and its rights, remedies, or securities
(Gerken v. Davidson Grocery Co., 57 Idaho 670, 69 P. 2d 122, 126). Subrogation
denotes the exchange of a third person who has paid a debt in the place of the creditor
to whom he has paid it, so that he may exercise against the debtor all the rights which
the creditor, if unpaid, might have done . . . Insurance companies, guarantors and
bonding companies generally have the right to step into the shoes of the party whom
they compensate and sue any party whom the compensated party could have sued
(Black's Law Dictionary, 6th Ed., St. Paul, Minn., West Publishing Co., p. 1427).
3 (Popup - Popup)
3. Decision penned by Judge Salvador S. Abad Santos, RTC-Br. 65, Makati City,
Records, pp. 204-205.
4 (Popup - Popup)
4. Decision penned by Justice Jaime M. Lantin with the concurrence of Justices Alicia
Austria-Martinez and Conrado M. Vasquez Jr.; Rollo, p. 18.
5 (Popup - Popup)
5. G.R. No. 57298, 7 September 1984, 132 SCRA 10.
6 (Popup - Popup)
6. Andamo v. Intermediate Appellate Court, G.R. No. 74761, 6 November 1990, 191
SCRA 195.
7 (Popup - Popup)
7. Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the
Philippines, 1992 Ed., Vol. V, p. 611.

EN BANC
[G.R. No. 29356. December 29, 1928.]
THE CITY OF MANILA, plaintiff-appellee, vs. THE MANILA

ELECTRIC COMPANY, defendant-appellant.
Ross, Lawrence & Sellph and Antonio T. Carrascoso, Jr., for appellant.
City Fiscal Guevara and Assistant City Fiscal Paredes, for appellee.
SYLLABUS
1. PLEADING AND PRACTICE; EVIDENCE; ADMISSIBILITY OF A

RECORD IN A CRIMINAL PROCEEDING IN A CIVIL ACTION. — A record in a
criminal action cannot be admitted in a civil action except by way of inducement or to
show a collateral fact. The rule might be different if the party in the civil action had
control over the proceedings in the criminal action as by showing that the party in the
civil action supplied the lawyer for the accused in the criminal action.
2. CRIMINAL LAW; SUBSIDIARY CIVIL LIABILITY FOR CRIMES;

RELATIONS OF PENAL CODE AND CIVIL CODE. — Where a motorman was
convicted of the crime of damage to property and slight injuries through reckless
imprudence, and was sentenced therefor to pay a fine of P900, to indemnify the
offended party in the sum of P1,788.27, with subsidiary imprisonment in case of
insolvency, and to pay the costs, and where the offended party was not able to collect
the indemnity from the accused and so began an action to obtain payment from the
master, it is held that the case relates to the Penal Code and not to the Civil Code, and
so should be governed by the provisions of the Penal Code and not by the provisions
of the Civil Code.
3. ID.; ID.; ID. — The Penal Code authorizes the determination of

subsidiary liability. The Civil Code negatives its applicability by providing that civil
obligations arising from crimes or misdemeanors shall be governed by the provisions
of the Penal Code. In other words, the Penal Code affirms its jurisdiction while the
Civil Code negatives its jurisdiction.

Per JOHNSON, J., concurring:
4. DAMAGES, CIVIL AND CRIMINAL, RESULTING FROM CRIMES

AND MISDEMEANORS; SHOULD BE SETTLED IN ONE ACTION. — In this
jurisdiction the rule is, that all liabilities, civil and criminal, resulting from the same
crimes and misdemeanors, shall be decided in the same case. No such rule exists in
the United States. The reason for the rule is to avoid the multiplicity of actions.
DECISION
MALCOLM, J : p
The Manila Electric Company appeals from a judgment of the Court of First
Instance of Manila which condemns it to pay to the City of Manila the sum of
P1,788.27, with legal interest from September 10, 1927, and with costs. While the
case in its superficial aspects has appeared to be a simple one, in its fundamentals the
cause suggests important questions which possibly the parties have not entirely
grasped. By way of preliminary statement, it also remains to be said that the
numerous deliberations of the court on the case have disclosed conflicting views
which it is difficult to reconcile. The present decision, therefore, will aim to present as
best it may, the principles for which a majority of the court stand, leaving it to the
individual member to dissent or otherwise explain his Vote as to him seems fit and
proper.
On June 8, 1925, in the City of Manila, there occurred a collision between a

street car of the Manila Electric Company, of which Sixto Eustaquio was the
motorman, and a truck belonging to the City of Manila. As a result of the collision,
the truck was damaged in the sum of P1,788.27. Sixto Eustaquio was prosecuted for
the crime of damage to property and slight injuries through reckless imprudence. He
was convicted by final judgment and was sentenced to pay a fine of P900, to
indemnify the offended party, the City of Manila, in the sum of P1,788.27, with
subsidiary imprisonment in case of insolvency, and to Par the costs. Not being able to
collect the indemnity from the accused, the City of Manila began an action to obtain
payment from the Manila Electric Company. An allegation of the complaint was
"That the defendant Manila Electric Company as master of the said agent and servant,
Sixto Eustaquio, by virtue of its relations with the latter and by express provisions of
law, is subsidiarily liable to the herein plaintiff for the sum of P1,788.27, representing
the damages caused by its agent and servant, the said Sixto Eustaquio, in the
discharge of his duties as motorman of the defendant's electric car." The principal
special defense set up in the answer to the complaint was that the defendant had used
all the diligence of a good father of a family to prevent the damage suffered by
plaintiff. At the trial, the parties agreed on certain stipulations and admissions. The
Assistant City Fiscal also offered to present two witnesses, but the trial judge thought
this unnecessary and to took judicial cognizance of the decision and the record in the
criminal case which convicted the motorman, all against the protest of counsel for the
Manila Electric Company who noted his exceptions. The adverse judgment is now
contested on the ground that the trial court committed two errors, the first in admitting
in evidence the documents marked Exhibits A, B, C, D, E and F, constituting the
record in the case of the People of the Philippine Islands vs. Sixto Eustaquio; and the
second in not absolving the appellant from the complaint.
I. The first error plainly has merit. As a general rule, a record in a criminal
action cannot be admitted in evidence in a civil action except by way of inducement
or to show a collateral fact. The very obvious reason is that the parties and the issues
in a criminal action and a civil action are not the same. It is rudimentary that due
process must be followed in the trial of all causes. No man or entity may be
condemned without a day in court. (Almeida Chantangco and Lete vs. Abaroa
[1910], 218 U. S., 476; 40 Phil., 1056; Ed. A. Keller & Co. vs. Ellerman & Bucknall
Steamship Co. [1918], 38 Phil., 514.)
It needs to be repeated that the Manila Electric Company was not a party at the
trial of the criminal case. There is extant in the record no indication that the Manila
Electric Company had any control over the proceedings in the criminal case. All that
the record in the criminal case showed was that the "abogado defensor" (Attorney for
the defense) was Antonio Carrascoso. All that the record in the civil case showed was
"Comparecieron: . . . Por la entidad demandada The Manila Electric Co., los
abogados senores Antonio T. Carrascoso, Jr., y Guillermo Cabrera" (Appearances: . . .
For the defendant Manila Electric Company attorneys Antonio T. Carrascoso, Jr., and
Guillermo Cabrera). By a coincidence, Attorney Carrascoso was both counsel for the
defendant in the criminal action and for the defendant in the civil action. But there is
lacking any proof showing that the Manila Electric Company supplied the lawyer for
the accused in the criminal action and so is concluded by the judgment there rendered.
(By way of parenthesis, it may be said further that the statements just made are
offered to meet the argument advanced during our discussion to the effect that the
court should treat the interests of the Manila Electric Company as involved in both
litigations and should thus consider the company as a real party without right now to
protest against the judgment.)

It is our ruling that prejudicial error was committed in the admission by the
trial court of Exhibits A to F, but that since the plaintiff made the proper offer to
present its witnesses, the case should be remanded for a new trial.
II. It has been suggested that having passed on the first error that would be
sufficient. Theoretically, that is true. Practically, it is a fallacious argument. A new
trial left unguided would immediately raise questions which would need to be passed
upon eventually by this court. Also if the customary defense in civil actions for
damages is to be held sufficient, the new trial would be fruitless and the appeal might
just as well be dismissed now as later, in view of the stipulations appearing in the
record.
We desire to pay our respects to the second error assigned and to the point of
whether or not a case of this character should be governed by the provisions of the
Penal Code or by the provisions of the Civil Code.
The Penal Code authorizes the imposition of subsidiary liability in default of

the persons criminally liable. Article 20 of the Penal Code provides that this
subsidiary liability shall "apply to masters, teachers, persons, and corporations
engaged in any kind of industry for felonies and misdemeanors committed by their
servants, pupils, workmen, apprentices, or employees in the discharge of their duties."
It is under this provision that the City of Manila is attempting to collect damages from
the Manila Electric Company. If the Philippines still lay beneath the dominion of
Spain, the pronouncement of primary and subsidiary liability would be taken much as
a matter of course. (See decisions of the Supreme Court of Spain of October 10,1884,
January 3, 1887, June 15, 1889, March 6, 1897, December 14, 1894, February 19,
1902; 2 Viada Codigo Penal Comentado, 5th ed., pp. 487-495; 1 Hidalgo Codigo
Penal, pp. 331-334 ; 1 Groizard Codigo Penal, pp. 736-738; Opinion of the Fiscal of
the Supreme Court of Justice of Spain of January 17, 1865, 22 Revista de Legislacion
y Jurisprudencia, p. 412; Codigo Penal of Spain of 1928, art. 78.) The Penal Code
then takes cognizance of the Civil Code when in article 133 it is provided: "Civil
liability arising from felonies or misdemeanors shall be extinguished in the same
manner as other obligations, in accordance with the rules of civil law."
In connection with the Penal Code, there must be taken into view certain
provisions of the Civil Code. Book n, Title XVI, Chapter II, of the Civil Code
concerns obligations which arise from fault or negligence. It is provided in article
1903 that the obligation imposed for the damage to another caused by fault or
negligence is enforcible against those persons for whom another is responsible. But it
is added that "The liability imposed by this article shall cease in case the persons
subject thereto prove that they exercised all the diligence of a good father of a family
to prevent the damage." Found prior to these articles of the Civil Code in the Chapter
of Title I, Book IV, pertaining to general provisions of obligations, are articles 1092
and 1093. The first provides: "Civil obligations arising from crimes or misdemeanors
shall be governed by the provisions of the Penal Code." The last mentioned provides:
"Those ariving from wrongful or negligent acts or omissions not punishable by law
shall be subject to the provisions of Chapter second of Title sixteen of this book." —
that is among others to the provisions of article 1903 above-mentioned.
Manresa, speaking of article 1092 of the Civil Code, offers the following
comment:
"The Penal Code treats of this matter, first, in Chapter II, Title 2, of
Book I, determining therein who are civilly liable for crimes or misdemeanors
and in what manner, and stating in Title 4 of the same Book the extent and
purposes of said obligations. Said Book I ends with article 185, which makes
express reference to the civil legislation. which reference, as may be seen, is
also made in other provisions.
"In those mutual references of one legislation to another, there is no

doubt as to the application of one or the other, nor can they be criticized, since
they are well grounded.
"The Civil Code refers to the Penal Code as the rule applicable in the
first place, since the latter determines and punishes the acts giving rise to said
obligations, or creates said obligations, thereby determining their existence and
is, therefore, for that reason of preferential application. But, then, as the Penal
Code is concerned with, and is interested only in determining how the civil
obligation it creates comes into existence and develops under the influence of
the illicit character of the act from which it arises and in the guilt of the subject
of said obligation, as a consequence of said illicit character, it lays down only
those rules inspired by those motives; and once the connection of that obligation
with the criminal liability is established in its provisions, with the consequences
that may be inferred from the fact that the former is based on the latter; and
after an effort has been made, within the sphere of that civil responsibility,
toward making the indemnification coextensive with the effects of the crime,
and a special necessity, which is characteristic of punishment and is the subject
matter of the Penal Code, has been shown in the provisions regulating said
liability, the Penal Code, could not, without going beyond its one sphere, give
all the rules relative to said obligations, nor did it have any necessity for doing
so, because once the peculiar nature of said obligations is saved by its
provisions, the essence thereof common to the other obligations must, as in the
latter, be defined by the civil law, which will thus become an important source,
although suppletory, of those derived from crime.

"The peculiar rules of the Penal Code, as may be seen, are inspired by
those motives which, as we have stated, might make them necessary for said
Code to establish, as distinguished from the criterion of the civil law with
regard to obligations in general. Thus, the fundamental declaration of article 18
gives the connection of civil obligation with criminal liability and explains the
origin of the former: article 19 solves the doubt which that connection, among
certain liabilities, may create, and determining its limits in the nature and
consequences of the act, it mentions those which are of a civil nature, basing the
civil liability upon principles of justice, and rather upon casualty than upon
liability of a criminal character. The intention to make indemnification
proportionate to the nature and effects of the act, from which the obligation
arises, inspires the provisions contained in articles 121 to 124, both inclusive;
the necessity to distinguish, in order to give the consequences which the crime
may produce within the sphere of civil law, whether or not the persons thereby
bound are guilty, prevails in article 128 and partly in article 122; article 125
gives the essential difference between the civil obligation and the personal
criminal liability, and dissipates a doubt which, due to the latter's
intransmissibility, might arise as to the former by reason of its accessory
character in connection with the other, and by the intimate connection between
both which the crime or misdemeanor creates and the criminal law declares; the
influence of the severity on the punishment is noted in articles 20 and 21, even
though the latter coincide with the criterion followed in analogous cases by the
Civil Code, and already deviating from the latter's criterion by reason of that
severity founded on the illicit origin of the obligations which it declares, it
provides for the latter a necessary solidarity in article 127; and abandoning also
the criterion of the civil law in article 126, it establishes within that solidarity,
not the presumption of equal division which the latter provides in such a case,
but a prudent division which may, and generally must be, unequal, in order that
the influence of the different participation in the crime or misdemeanor which is
the origin of the former may also reach the Civil obligation.
"In all other respects, and even in some of those same features, either by
the express reference o the articles which provide for them, or by the latter's
influence, the civil obligation shall be subject to the Civil Code, which even in
some of those peculiar rules has supposed a modification in so far as it does not
establish the benefit of exemption to the extent needed for support, as provided
for in the Penal Code.
"While the Civil Code, in its article 1092, simply makes reference to the
Penal Code, yet, it is beyond doubt that by this reference it means those rules of
a general nature which regulate the civil liability arising from the particular
crimes or misdemeanors therein mentioned, and that, in connection therewith,
they shall have the preferential application which this article recognizes in favor

of the Penal Code." 8 Manresa Codigo Civil Español, 3d ed., pp. 28-32.)
The case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), is
one of the widest known authorities on the subject of damages. But that was strictly a
civil action not predicated on or related to a criminal action. It was said: "Inasmuch as
no criminal proceeding had been instituted, growing out of the accident in question,
the provisions of the Penal Code cannot affect this action. This construction renders it
unnecessary to finally determine here whether this subsidiary civil liability in penal
action has survived the laws that fully regulated it or has been abrogated by the
American civil and criminal procedure now in force in the Philippines." That such
subsidiary civil liability in penal actions has not been abrogated by later laws, seems
fairly well established. Section 107 of the Code of Criminal Procedure recognizes the
rights of persons injured by the offense to take part in the prosecution of the offense
and to recover damages. It is there provided that "the court upon conviction of the
accused may enter judgment against him for the damages occasioned by his wrongful
act." Authoritative decisions have also leaned in the direction of taking it for granted
that civil liability could be fixed in the criminal action. While the law of criminal
procedure is silent on the subject of subsidiary liability, so far as we can see, there
could exist no good reason for not permitting the action to be carried forward to the
second stage and there to fix subsidiary liability.
With this preliminary point out of the way, there is no escaping the conclusion
that the provisions of the Penal Code govern. The Penal Code in easily
understandable language authorizes the determination of subsidiary liability. The
Civil Code negatives its application by providing that civil obligations arising from
crimes or misdemeanors shall be governed by the provisions of the Penal Code. The
conviction of the motorman was a misdemeanor falling under article 604 of the Penal
Code. The act of the motorman was not a wrongful or negligent act or omission not
punishable by law. Accordingly, the civil obligation connected up with the Penal
Code and not with article 1903 of the Civil Code. In other words, the Penal Code
affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of
criminal negligence out of which civil liability arises and not a ease of civil
negligence.
The decision of the United States Supreme Court in the ease of Almeida
Chantangco and Lete vs. Abaroa, supra, should be read in connection both with the
discussion of the first assignment of error and the question now before us. In that
decision, Mr. Justice Lurton, delivering the opinion of the court, said:
"The case is, however, one which we conceive must be governed by the
local law of the Philippine Islands, and the single question to which we need
address ourselves is as to whether that law was rightly applied by the local
tribunals.
"Article 1902 of the Civil Code in, force in the Philippine Islands reads
thus: 'A person who, by an act or omission, causes damage to another when
there is fault or negligence, shall be obliged to repair the damage so done.' By
articles 1092 and 1093 of the same Code provision is made for the enforcement
of civil liability, varying in character according to the origin of the liability.
Thus, article 1092 provides that civil obligations arising from crimes and
misdemeanors shall be governed by the provisions of the Penal Code. On the
other hand, article 1093 provides that 'those arising from acts or omissions, in
which fault or negligence, not punished by law, occurs, shall be subject to the
provisions of chapter second of title sixteen of this book.' The action here
involved comes directly under article 1092, above set out, and is not an action
arising from 'fault or negligence, not punished by law.' The complaint alleges
that the act of burning was 'malicious and unlawful,' and not that it was the
result of any 'fault or negligence.' This was the construction placed upon the
complaint by both the courts below, and is a construction not challenged here. It
follows that we must turn to the Penal Code to discover when a civil action
arises out of a crime or misdemeanor, and the procedure of the enforcement of
such civil liability. Article 17 of the Penal Code reads as follows: 'Every person
criminally liable for a crime or misdemeanor is also civilly liable.' May this
civil liability be enforced without a prior legal determination of the fact of the
defendant's guilt of crime? Does civil liability exist at all if the defendant has
been found not guilty of the acts out of which the civil liability arises? The
opinion of the court below was that a judgment of conviction was essential to an
action for indemnification under the applicable local law. To this conclusion we
assent, upon the following considerations:
"First, by the positive legislation of the Philippine Codes, civil and

criminal, a distinction is drawn between a civil liability which results from the
mere negligence of the defendant and a liability for the civil consequences of a
crime by which another has sustained loss or injury.
"Second, the plain inference from article 17, above set out, is that civil
liability springs out of and is dependent upon facts which, if true, would
constitute a crime or misdemeanor.
"Third, the Philippine Code of Procedure plainly contemplates that the

civil liability of the defendant shall be ascertained and declared in the criminal
proceedings.
"Thus, section 742 of the Code of Criminal Procedure, after requiring

that, in a criminal proceeding, all of the minor or incidental offenses included in
the principal crime shall be decided, adds: 'All questions relating to the civil
liability which may have been the subject-matter of the charge shall be decided
in the sentence.'
xxx xxx xxx
"The foregoing considerations eliminate any question of the effect of

such a judgment of acquittal under the principles of the common law and
require an affirmance of the judgment of the court below as properly based
upon the applicable substantive law of the Philippine Islands, which has not
been superseded by legislation since the establishment of the present Philippine
Government."
The facts here are distinguishable from those in Chaves and Garcia vs. Manila
Electric Railroad and Light Company ( [1915], 31 Phil., 47). In the cited case, while
the motorman was prosecuted and convicted, his sentence included no imposition of
civil liability. So the court correctly held, although without discussion, that the
employer was not liable in damages resulting from the criminal negligence of his
employee, when he has exercised the care of a good father of a family in selecting
said employee.
In the later decision of this court in Francisco vs. Onrubia ( [1924], 46 Phil.,
327), the court gave attention to a similar question. Speaking through Mr. Justice
Villamor, the court reached the following conclusions:
"Article 1902 of the Civil Code has no application in the instant case,
first, because said article presupposes the existence of fault or negligence upon
which the action is based, and second, it refers to a fault or negligence not
punishable by law, because if the fault or negligence is punished by law, it
ceases to be the quasi crime of negligence having purely civil effects, and
becomes a crime or misdemeanor, according to the gravity of the penalty
imposed by the law, and in that case it comes within the purview of article 1092
of the Civil Code. Under the facts set forth in the complaint, if there was any
fault or negligence on the part of the defendant, it must necessarily be a fault
punishable by law (arts. 568, 590, and 604 of the Penal Code), for brought said
fault he caused the death of the plaintiff's son. Homicide through reckless
imprudence is punished as a crime, and therefore the provisions applicable
would be those of the Penal Code and the Law of Criminal Procedure above
cited."
Our deduction, therefore, is that the case relates to the Penal Code and not to
the Civil Code. Indeed, as pointed out by the trial judge, any different ruling would
permit the master to escape scot-free by simply alleging and proving that the master
had exercised all diligence in the selection and training of its servants to prevent the
damage. That would be a good defense to a strictly civil action) but might or might
not be to a civil action either a part of or predicated on conviction for a crime or
misdemeanor. (By way of parenthesis, it may be said further that the statements here
made are offered to meet the argument advanced during our deliberations to the effect
that article 11092 of the Civil Code should be disregarded and codal articles 1093 and
1903 applied.)
In accordance with the foregoing, the judgment appealed from will be set
aside, and the record remanded to the lower court for a new trial. Without special
finding as to costs in this instance, it will be so ordered.
Avanceña, C.J., Street, Villamor, Romualdez and Villa-Real, JJ., concur.
Separate Opinions
JOHNSON, J., concurring:
In this jurisdiction the rule is, that all liabilities, civil and criminal, resulting
from crimes and misdemeanors, shall be decided in the same case. No such rule exists
in the United States. To avoid a multiplicity of actions, therefore, all persons who are
civilly and criminally liable as a result of crimes and misdemeanors, should be cited
to appear for the purpose of making their defense. All such persons are proper parties.
There is no reason in law why there should be more than one action to settle both the
criminal and civil liabilities.
JOHNS, J., concurring:
I concur in the result on the first assignment of error and at this time decline to
express any opinion as to the second.
Ostrand, J., dissents.

EN BANC
[G.R. No. L-24837. June 27, 1968.]
JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs,

vs. BANK OF THE PHILIPPINE ISLANDS and SANTIAGO
FREIXAS, in his capacity as President of the said Bank, defendants.
Gil B. Galang for plaintiff-appellants.

Aviado & Aranda for defendant-appellee.
SYLLABUS
1. CIVIL LAW; DAMAGES; TORTS; CONTRACTUAL RELATION

DOES NOT BAR RECOVERY OF DAMAGES. — The existence of a contract
between the parties does not bar the commission of a tort by the one against the other
and the consequent recovery of damages. Where the act that breaks the contract may
also be a tort, the contractual relation of the parties does not bar the recovery of
damages. (Air France vs. Carrascoso, L-21438, September 28, 1966).
DECISION
CONCEPCION, J : p
Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a
decision of the Court of First Instance of Manila dismissing their complaint against
defendants herein, the Bank of the Philippine Islands and Santiago Freixas.
It appears that Singson, was one of the defendants in civil case No. 23906 of
the Court of First Instance, Manila, in which judgment had been rendered sentencing
him and his codefendants therein, namely, Celso Lobregat and Villa-Abrille & Co., to
pay the sum of P105,539.56 to the plaintiff therein, Philippine Milling Co. Singson

and Lobregat had seasonably appealed from said judgment, but not Villa-Abrille &
Co., as against which said judgment, accordingly, became final and executory. In due
course, a writ of garnishment was subsequently served upon the Bank of the
Philippine Islands — in which the Singsons had a current account — insofar as
Villa-Abrille's credits against the Bank were concerned. What happened thereafter is
set forth in the decision appealed from, from which we quote:
"Upon receipt of the said Writ of Garnishment, a clerk of the bank in

charge of all matters of execution and garnishment, upon reading the name of
the plaintiff herein in the title of the Writ of Garnishment as a party defendant,
without further reading the body of the said garnishment and informing himself
that said garnishment was merely intended for the deposits of defendant
Villa-Abrille & Co., Valentin Teus, Fernando F. de Villa-Abrille and Joaquin
Bona, prepared a letter for the signature of the President of the Bank informing
the plaintiff Julian C. Singson of the garnishment of his deposits by the plaintiff
in that case. Another letter was also prepared and signed by the said President of
the Bank for the Special Sheriff dated April 17, 1963.
"Subsequently, two checks issued by the plaintiff Julian C. Singson, one

for the amount of P383 in favor of B.M. Glass Service dated April 16, 1963 and
bearing No. C-424852, and check No. C-394996 for the amount of P100 in
favor of the Lega Corporation, and drawn against the said Bank, were deposited
by the said drawees with the said bank. Believing that the plaintiff Singson, the
drawer of the check, had no more control over the balance of his deposits in the
said bank, the checks were dishonored and were refused payment by the said
bank. After the first check was returned by the bank to the B.M. Glass Service,
the latter wrote plaintiff Julian C. Singson a letter, dated April 19, 1963,
advising him that his check for P383.00 bearing No. C-424852 was not honored
by the bank for the reason that his account therein had already been garnished.
The said B.M. Glass Service further stated in the said letter that they were
constrained to close his credit account with them. In view thereof, plaintiff
Julian C. Singson wrote the defendant bank a letter on April 19, 1963, claiming
that his name was not included in the Writ of Execution and Notice of
Garnishment, which was served upon the bank. The defendant President
Santiago Freixas of the said bank took steps to verify this information and after
having confirmed the same, apologized to the plaintiff Julian C. Singson and
wrote him a letter dated April 22, 1963, requesting him to disregard their letter
of April 17, 1963, and that the action of garnishment from his account had
already been removed. A similar letter was written by the said official of the
bank on April 22, 1963 to the Special Sheriff informing him that his letter dated
April 17, 1963 to the said Special Sheriff was considered cancelled and that
they had already removed that the Notice of Garnishment from plaintiff
Singson's account. Thus, the defendants lost no time to rectify the mistake that

had been inadvertently committed, resulting in the temporary freezing of the
account of the plaintiff with the said bank for a short time.
xxx xxx xxx"
On May 8, 1963, the Singsons commenced the present action against the Bank
and its president, Santiago Freixas, for damages 1(1) in consequence of said illegal
freezing of plaintiffs' account.
After appropriate proceedings, the Court of First Instance of Manila rendered

judgment dismissing the complaint upon the ground that plaintiffs cannot recover
from the defendants upon the basis of a quasi-delict, because the relation between the
parties is contractual in nature; because this case does not fall under Article 2219 of
our Civil Code, upon which plaintiffs rely; and because plaintiffs have not established
the amount of damages allegedly sustained by them.
The lower court held that plaintiffs' claim for damages cannot be based upon a
tort or quasi-delict, their relation with the defendants being contractual in nature. We
have repeatedly held, however, that the existence of a contract between the parties
does not bar the commission of a tort by the one against the order and the consequent
recovery of damages therefor. 2(2) Indeed, this view has been in effect, reiterated in
a comparatively recent case. Thus, in Air France vs. Carrascoso, 3(3) involving an
airplane passenger who, despite his first- class ticket, had been illegally ousted from
his first-class accommodation, and compelled to take a seat in the tourist
compartment, was held entitled to recover damages from the air- carrier, upon the
ground of tort on the latter's part, for, although the relation between a passenger and
the carrier is "contractual both in origin and nature . . . the act that breaks the contract
may also be a tort".
In view, however, of the facts obtaining in the case at bar, and considering,
particularly, the circumstance that the wrong done to the plaintiffs was remedied as
soon as the President of the bank realized the mistake he and his subordinate
employee had committed, the Court finds that an award of nominal damages — the
amount of which need not be proven 4(4) — in the sum of P1,000, in addition to
attorney's fees in the sum of P500.00, would, suffice to vindicate plaintiff's rights.
5(5)
WHEREFORE, the judgment appealed from is hereby reversed and another

one shall be entered sentencing the defendant Bank of the Philippine Islands to pay to
the plaintiffs said sums of P1,000, as nominal damages, and P500.00, as attorney's
fees, apart from the costs. It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez Castro and Angeles, JJ.,
concur.
Fernando, J., took no part.
Footnotes
1. P100,000 as moral damages, P20,000 as exemplary damages, P20,000 as nominal

damages, and P10,000 for attorney's fees and expenses of litigation, plus the costs.
2. Cangco vs. Manila Railroad, 38 Phil. 768: Yamada vs. Manila Railroad, 33 Phil. 8;
Vasquez vs. Borja, 74 Phil. 560.
3. L-21438, Sept. 28, 1966.
4. Ventanilla vs. Centeno, L-14333, January 28, 1961.
5. Articles 2208 and 2221 of the Civil Code of the Philippines.

Endnotes
1 (Popup - Popup)
1. P100,000 as moral damages, P20,000 as exemplary damages, P20,000 as nominal
damages, and P10,000 for attorney's fees and expenses of litigation, plus the costs.
2 (Popup - Popup)
2. Cangco vs. Manila Railroad, 38 Phil. 768: Yamada vs. Manila Railroad, 33 Phil. 8;
Vasquez vs. Borja, 74 Phil. 560.
3 (Popup - Popup)
3. L-21438, Sept. 28, 1966.
4 (Popup - Popup)
4. Ventanilla vs. Centeno, L-14333, January 28, 1961.
5 (Popup - Popup)
5. Articles 2208 and 2221 of the Civil Code of the Philippines.

FIRST DIVISION
[G.R. No. 7567. November 12, 1912.]
THE UNITED STATES, plaintiff-appellee, vs. SEGUNDO BARIAS,

defendant-appellant.
Bruce, Lawrence, Ross & Block for appellant.

Solicitor-General Harvey for appellee.
SYLLABUS
1. NEGLIGENCE DEFINED. — Negligence is "the 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."
2. ID.; ID. — Silvela's observation that "if a moment's attention and

reflexion would have shown a person that the act which he was about to perform was
liable to have the harmful consequences which it had, such person acted with temerity
and may be guilty of imprudencia temeraria," cited with approval.
3. ID.; ID. — "The diligence with which the law requires the individual at
all times to govern his conduct varies with the nature of the situation in which he is
placed and with the importance of the act which he is to perform." (U. S. vs. Reyes, 1
Phil. Rep., 375, 377.)
4. ID.; STREET RAILWAYS; DUTIES AND RESPONSIBILITIES OF

MOTORMEN. — Held, that a motorman operating a street car on a public street in a
densely populated section of the city of Manila is bound to know and to recognize
that any negligence on his part in observing the track over which he is running his car
may result in fatal accidents. He has no right, when he starts from a standstill, to
assume that the track before his car is clear. It is his duty to satisfy himself of that fact
by keeping a sharp lookout and doing everything in his power to avoid the danger
which is necessarily incident to the operation of heavy street cars on thoroughfares in
populous sections of the city.
5. ID.; ID.; ID. — In the absence of some regulation of his employers, a
motorman who has brought his car to a standstill is not bound to keep his eyes
directly to the front while the car is stopped, but before setting it again in motion, it is
his duty to satisfy himself that the track is clear, and for that purpose to look and to
see the track just in front of his car.
6. ID.; ID.; ID. — The reasons of public policy which impose upon street
car companies and their employees the duty of exercising the utmost degree of
diligence in securing the safety of passengers, apply with equal force to the duty of
avoiding infliction of injuries upon pedestrians and others upon the public streets and
thoroughfares over which such companies are authorized to run their cars.
7. ID.; ID.; ID. — It is the manifest duty of a motorman operating an electric

street car on a public thoroughfare in as thickly settled district, to satisfy himself that
the track is clear immediately in front of his car before setting it in motion from a
standstill and for that purpose to incline his body slightly forward, if that be
necessary, in order to bring the track immediately in front of his car within his line of
vision.
DECISION
CARSON, J : p
This is an appeal from a sentence imposed by the Honorable A. S. Crossfield,

judge of the Court of First Instance of Manila, for homicide resulting from reckless
negligence. The information charges:

"That on or about November 2, 1911, in the city of Manila, Philippine
Islands, the said Segundo Barias was a motorman on street car No. 9, run 7, of
the Pasay-Cervantes lines of the Manila Electric Railroad and Light Company, a
corporation duly organized and doing business in the city of Manila, Philippine
Islands; as such motorman he was controlling and operating said street car
along Rizal Avenue, formerly Calle Cervantes, of this city, and as such
motorman of said street car he was under obligation to run the same with due
care and diligence to avoid any accident that might occur to vehicles and
pedestrians who were traveling on said Rizal Avenue; said accused, at said time
and place, did willfully, with reckless imprudenced and inexcusable negligence
and in violation of the regulations promulgated to that effect, control and
operate said street car, without heeding the pedestrians crossing Rizal Avenue
from one side to the other, thus knocking down and causing by his carelessness
and imprudent negligence that said street car No. 9, operated and controlled by
said accused, as hereinbefore stated, should knock down and pass over the body
and head of one Fermina Jose, a girl 2 years old, who at said time and place was
crossing the said Rizal Avenue, the body of said girl being dragged along the
street-car track on said Rizal Avenue for a long distance, thus crushing and
destroying her head and causing her sudden death as a result of the injury
received; that if the acts executed by the accused had been done with malice, he
would be guilty of the serious crime of homicide."
The defendant was a motorman for the Manila Electric Railroad and Light
Company. At about 6 o'clock on the morning of November 2, 1911, he was driving
his car along Rizal Avenue and stopped it near the intersection of that street with
Calle Requesen to take on some passengers. When the car stopped, the defendant
looked backward, presumably to note whether all the passengers were aboard, and
then started his car. At that moment Ferminia Jose, a child about 3 years old, walked
or ran in front of the car. She was knocked down and dragged some little distance
underneath the car, and was left dead upon the track. The motorman proceeded with
his car to the end of the track, some distance from the place of the accident, and
apparently knew nothing of it until his return, when he was informed of what had
happened.
There is no substantial dispute as to the facts. It is true that one witness

testified that the defendant started the car without turning his head, and while he was
still looking backwards and that this testimony was directly contradicted by that of
another witness. But we do not deem it necessary to make an express finding as to the
precise direction in which the defendant's head was turned at the moment when he
started his car. It is sufficient for the purpose of our decision to hold, as we do, that
the evidence clearly discloses that he started his car from a standstill without looking
over the track immediately in front of the car to satisfy himself that it was clear. He
did not see the child until after he had run his car over it, and after he had returned to
the place where it was found dead, and we think we are justified in saying that
wherever he was looking at the moment when he started his car, he was not looking at
the track immediately in front of the car, and that he had not satisfied himself that this
portion of the track was clear immediately before putting the car in motion.
The trial court found the defendant guilty of imprudencia temeraria (reckless
negligence) as charged in the information, and sentenced him to one year and one
month of imprisonment in Bilibid Prison, and to pay the costs of the action.
The sole question raised by this appeal is whether the evidence shows such
carelessness or want of ordinary care on the part of the defendant as to amount to
reckless negligence (imprudencia temeraria).
Judge Cooley in his work on Torts (3d ed., 1324) defines negligence to be:
"The 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."
In the case of U. S. vs. Nava, (1 Phi. Rep., 580), we held that: "Reckless
negligence consists of the failure to take such precautions or advance measures in the
performance of an act as the most common prudence would suggest whereby injury is
caused to persons or to property."
Silvela says in his "Derecho Penal," in speaking of reckless imprudence

(imprudencia temeraria):
"The word 'negligencia' used in the code, and the term 'imprudencia'
with which this punishable act is defined, express this idea in such a clear
manner that it is not necessary to enlarge upon it. He who has done everything
on his part to prevent his actions from causing damage to another, although he
has not succeeded in doing so, notwithstanding his efforts, is the victim of an
accident, and cannot be considered responsible for the same." (Vol. 2, p. 127
[153].)
"Temerario is, in our opinion, one who omits, with regard to his actions,
which are liable to cause injury to another, that care and diligence, that
attention, which can be required of the least careful, attentive, or diligent. If a
moment's attention and reflection would have shown a person that the act which
he was about to perform was liable to have the harmful consequence which it
had, such person acted with temerity and may be guilty of 'imprudencia
temeraria." It may be that in practice this idea has been given a greater scope
and acts of imprudence which did not show carelessness as carried to such a
high degree, might have been punished as 'imprudencia temeraria;' but in our
opinion, the proper meaning of the word does not authorize another
interpretation." (Id., p 133 [161].)
Groizard, commenting upon "imprudencia temeraria," on page 389, volume 8,

of his work on the Penal Code, says:
"Prudence is that cardinal virtue which teaches us to discern and

distinguish the good from the bad, in order to adopt or to flee from it. It also
means good judgment, temperance, and moderation in one's action. 'Temerario'
without reflection and without examining the same. Consequently, he who from
lack of good judgment, temperance, or moderation in his action, exposes
himself without reflection and examination to the danger of committing a crime,
must be held responsible under the provision of law aforementioned."
Negligence is want of the care required by the circumstances. It is a relative or

comparative, not an absolute, term and its application depends upon the situation of
the parties and the degree of care and vigilance which the circumstances reasonably
require. Where the danger is great, a high degree of care is necessary, and the failure
to observe it is a want of ordinary care under the circumstances. (Ahern vs. Oregon
Telephone Co., 24 Oreg., 276, 294; 35 Pac., 549.)
Ordinary care, if the danger is great, may rise to the grade of a very exact and
unchangeable attention. (Parry Mfg. Co. vs. Eaton, 41 Ind. App., 81, 1908; 83 N. E.,
510.)
In the case of U. S. vs. Reyes (1 Phil. Rep., 375-377), we held that: "The
diligence with which the law requires the individual at all times to govern his conduct
varies with the nature of the situation in which he is placed and with the importance
of the act which he is to perform."
The question to be determined then, is whether, under all the circumstances,

and having in mind the situation of the defendant when he put his car in motion and
ran it over the child, he was guilty of a failure to take such precautions or advance
measures as common prudence would suggest.
The evidence shows that the thoroughfare on which the incident occurred was
a public street in a densely populated section of the city. The hour was six in the
morning, or about the time when the residents of such streets begin to move about.
Under such conditions a motorman of an electric street car was clearly charged with a
high degree of diligence in the performance of his duties. He was bound to know and
to recognize that any negligence on his part in observing the track over which he was
running his car might result in fatal accidents. He had no right to assume that the track
before his car was clear. It was his duty to satisfy himself of that fact by keeping a
sharp lookout, and to do everything in his power to avoid the danger which is
necessarily incident to the operation of heavy street cars on public thoroughfares in
populous sections of the city.
Did he exercise the degree of diligence required of him? We think this

question must be answered in the negative. We do not go so far as to say that having
brought his car to a standstill it was his bounden duty to keep his eyes directed to the
front. Indeed, in the absence of some regulation of his employers, we can well
understand that, at times, it might be highly proper and prudent for him to gland back
before again setting his car in motion, to satisfy himself that he understood correctly a
signal to go forward or that all the passengers had safely alighted or gotten on board.
But we do insist that before setting his car again in motion, it was his duty to satisfy
himself that the track was clear, and, for that purpose, to look and to see the track just
in front of his car. This the defendant did not do, and the result of his negligence was
the death of the child.
In the case of Smith vs. St. Paul City Ry. Co., (32 Min., p. 1), the supreme
court of Minnesota, in discussing the diligence required of street railway companies
in the conduct of their business observed that: "The defendant was a carrier of
passengers for hire, owning and controlling the tracks and cars operated thereon. It is
therefore subject to the rules applicable to passenger carriers. (Thompson's Carriers,
442; Barrett vs. Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N. S.), 205.) As
respects hazards and dangers incident to the business or employment, the law enjoins
upon such carrier the highest degree of care consistent with its undertaking, and it is
responsible for the slightest negligence. (Wilson vs. Northern Pacific R. Co., 26
minn., 278; Warren vs. Fitchburg R. Co., 8 Allen, 233; 43 Am. Dec. 354, 356, notes
and cases.) . . . The severe rule which enjoins upon the carrier such extraordinary care
and diligence, is intended, for reasons of public policy, to secure the safe carriage of
passengers, in so far as human skill and foresight can affect such result." The case just
cited was a civil case, and the doctrine therein announced d especial reference to the
care which should be exercised in securing the safety of passengers. But we hold that
the reasons of public policy which imposed upon street car companies and their
employees the duty of exercising the utmost degree of diligence in securing the safety
of passengers, apply with equal force to the duty of avoiding the infliction of injuries
upon pedestrians and others on the public streets and thoroughfares over which these
companies are authorized to run their cars. And while, in a criminal case, the courts
will require proof of the guilt of the company or its employees beyond a reasonable
doubt, nevertheless the care or diligence required of the company and its employees is
the same in both cases, and the only question to be determined is whether the proof
shows beyond a reasonable doubt that the failure to exercise such care or diligence
was the cause of the accident, and that the defendant was guilty thereof.
Counsel for the defendant insist that the accident might have happened despite
the exercise of the utmost care by the defendant, and they have introduced
photographs into the record for the purpose of proving that while the motorman was
standing in his proper place on the front platform of the car, a child might have
walked up immediately in front of the car, a child might have walked up immediately
in front of the car without coming within the line of his vision. Examining the
photographs, we think that this contention may have some foundation in fact; but only
to this extent, that standing erect, at the position he would ordinarily assume while the
car is in motion, the eye of the average motorman might just miss seeing the top of
the head of a child, about three years old, standing or walking close up to the front of
the car. But it is also very evident that by inclining the head and shoulders forward
very slightly, and glancing in front of the car, a person in the position of a motorman
could not fail to see a child on the track immediately in front of his car; and we hold
that it is the manifest duty of a motorman, who is about to start his car on a public
thoroughfare in a thickly-settled district, to satisfy himself that the track is clear
immediately in front of his car, a person in the position of a motorman could not fail
to see a child on the track immediately in front of his car; and we hold that it is the
manifest duty of a motorman, who is about to start his car on a public thoroughfare in
a thickly-settled district, to satisfy himself that the track is clear immediately in front
of his car, and to incline his body slightly forward, if that be necessary, in order to
bring the whole track within his line of vision. Of course, this may not be, and usually
is not necessary when the car is in motion, but we think that it is required by the
dictates of the most ordinary prudence in starting from a standstill.
We are not unmindful of our remarks in the case of U. S. vs. Bacho (10 Phil.
Rep., 577), to which our attention is directed by counsel for appellant. In that case we
said that:
". . . In the general experience of mankind, accidents apparently

unavoidable and often inexplicable are unfortunately too frequent to
permit us to conclude that some one must be criminally liable for
negligence in every case where an accident occurs. it is the duty of the
prosecution in each case to prove by competent evidence not only the
existence of criminal negligence, but that the accused was guilty thereof."
Nor do we overlook the ruling in the case of U. S. vs. Barnes (12 Phil. Rep.,
93), to which our attention is also invited, wherein we held that the defendant was not
guilty of reckless negligence, where it appeared that he killed another by the
discharge of his gun under such circumstances that he might have been held guilty of
criminally reckless negligence had he had knowledge at that moment that another
person was in such position as to be in danger if the gun should be discharged. In this
latter case the defendant had no reason to anticipate that the person who was injured
was in the line of fire, or that there was any probability that he or anyone else would
place himself in the line of fire. In the case at bar, however, it was, as we have seen,
the manifest duty of the motorman to take reasonable precautions in starting his car to
see that in doing so he was not endangering the life of any pedestrian, old or young;
and to this end it was further his duty to guard against the reasonable possibility that
some one might be on the evidence showing, is it does, that the child was killed at the
moment when the car was set in motion, we are justified in holding that, had the
motorman seen the child, he could have avoided the accident; the accident was not,
therefore, "unavoidable or inexplicable," and it appearing that the motorman, by the
exercise of ordinary diligence, might have seen the child before he set the car in
motion, his failure to satisfy himself that the track was clear before doing so was
reckless negligence, of which he was properly convicted in the court below.
We think, however, that the penalty should be reduced to that of six months
and one day of prision correccional. Modified by substituting for so much thereof as
imposes the penalty of one year and one month of imprisonment, the penalty of six
months and one day of prision correccional, the judgment of the lower court
convicting and sentencing the appellant is affirmed, with the costs of both instances
against him. So ordered.
Arellano, C.J., Torres and Mapa, JJ., concur.
Johnson, J., concurs in the result.
Trent, J., dissents.

THIRD DIVISION
[G.R. No. L-44264. September 19, 1988.]
HEDY GAN y YU, petitioner, vs. THE HONORABLE COURT OF

APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.
Pacis, Baluyot, Reyes & De Leon for petitioner.

The Solicitor General for respondents.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE THRU SIMPLE IMPRUDENCE;

NEGLIGENCE; TEST TO DETERMINE CULPABILITY. — The test for
determining whether or not a person is negligent in doing an act whereby injury or
damage results to the person or property of another is this: Would a prudent man in
the position of the person to whom negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course about to be pursued? If so, the law
imposes the duty on the doer to take precaution against its mischievous results and the
failure to do so constitutes negligence.
2. ID.; ID.; ID.; EMERGENCY RULE. — A corollary rule is what is

known in the law as the emergency rule. "Under that rule, one who suddenly finds
himself in a place of danger, and is required to act without time to consider the best
means that may be adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and upon reflection may appear to
have been a better method, unless the emergency in which he finds himself is brought
about by his own negligence."
3. REMEDIAL LAW; EVIDENCE; ACCUSED STATEMENT

PRESENTED BY PROSECUTION DEEMED ADMITTED BY IT. — The
prosecution having presented this exhibit as its own evidence, we cannot but deem its
veracity to have been admitted by it.
4. CRIMINAL LAW; HOMICIDE THRU SIMPLE IMPRUDENCE;

NEGLIGENCE; A DRIVER WHO SUDDENLY HAD TO EXERCISE HER BEST
JUDGMENT TO AVOID DANGER IS NOT NEGLIGENT. — Under the
circumstances narrated by petitioner, we find that the appellate court is asking too
much from a mere mortal like the petitioner who in the blink of an eye had to exercise
her best judgment to extricate herself from a difficult and dangerous situation caused
by the driver of the overtaking vehicle. Petitioner certainly could not be expected to
act with all the coolness of a person under normal conditions." The danger
confronting petitioner was real and imminent, threatening her very existence. She had
no opportunity for rational thinking but only enough time to heed the very powerful
instinct of self-preservation. Also, the respondent court itself pronounced that the
petitioner was driving her car within the legal limits. We therefore rule that the
"emergency rule" enunciated above applies with full force to the case at bar and
consequently absolve petitioner from any criminal negligence in connection with the
incident under consideration.
5. CRIMINAL LAW; CIVIL LIABILITY; RELEASE BY HEIRS OF

CLAIM IS WAIVER OF AWARD OF DAMAGES. — We further set aside the
award of damages to the heirs of the victim, who by executing a release of the claim
due them, had effectively and clearly waived their right thereto. Petitioner is no
longer liable for the P12,000.00 civil indemnity awarded by the appellate court to the
heirs of the victim.
DECISION
FERNAN C.J. : p
Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless
Imprudence in Criminal Case No. 10201 of the then Court of First Instance of Manila,
Branch XXII, presided by Judge Federico C. Alikpala. She was sentenced to an
indeterminate penalty of four (4) months and one (1) day of arresto mayor as
minimum and two (2) years, four (4) months and one (1) day of prision correccional
as maximum and was made to indemnify the heirs of the victim the sum of
P12,000.00 without any subsidiary imprisonment in case of insolvency and to pay the
costs. On appeal, the trial court's decision was modified and petitioner was convicted
only of Homicide thru Simple Imprudence. Still unsatisfied with the decision of the
Court of Appeals, 1(1) petitioner has come to this Court for a complete reversal of the
judgment below.

The facts of the case as found by the appellate court are as follows:
"In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy
Gan was driving a Toyota car along North Bay Boulevard, Tondo, Manila.
While in front of house no. 694 of North Bay Boulevard, there were two
vehicles, a truck and a jeepney parked on one side of the road, one following the
other about two to three meters from each other. As the car driven by the
accused approached the place where the two vehicles were parked, there was a
vehicle coming from the opposite direction, followed by another which tried to
overtake and bypass the one in front of it and thereby encroached the lane of the
car driven by the accused. To avoid a head-on collision with the oncoming
vehicle, the defendant swerved to the right and as a consequence, the front
bumper of the Toyota Crown Sedan hit an old man who was about to cross the
boulevard from south to north, pinning him against the rear of the parked
jeepney. The force of the impact caused the parked jeepney to move forward
hitting the rear of the parked truck ahead of it. The pedestrian was injured, the
Toyota Sedan was damaged on its front, the jeep suffered damages on its rear
and front parts, and the truck sustained scratches at the wooden portion of its
rear. The body of the old man who was later identified as Isidoro Casino was
immediately brought to the Jose Reyes Memorial Hospital but was
(pronounced) dead on arrival." 2(2)
An information for Homicide thru Reckless Imprudence was filed against

petitioner in view of the above incident. She entered a plea of not guilty upon
arraignment and the case was set for trial.
Meanwhile, petitioner sought and was granted a re-investigation by the City

Fiscal, as a result of which the trial fiscal moved for the dismissal of the case against
petitioner during the resumption of hearing on September 7, 1972. The grounds cited
therefor were lack of interest on the part of the complaining witness to prosecute the
case as evidenced by an affidavit of desistance submitted to the trial court and lack of
eyewitness to sustain the charge.
The motion to dismiss filed by the fiscal was never resolved. The Court instead
ordered the prosecution to present its evidence. After the prosecution rested its case,
the petitioner filed a motion to dismiss the case on the ground of insufficiency of
evidence.
On December 22, 1972, the trial court rendered judgment finding petitioner
guilty beyond reasonable doubt of the offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On

May 3, 1976, the Court of Appeals rendered a decision, the dispositive portion of
which reads as follows:
"Wherefore, as modified, the accused Hedy Gan is guilty beyond

reasonable doubt of the crime of homicide thru simple imprudence and,
pursuant to paragraph 2, Article 365 of the Revised Penal Code she is hereby
sentenced to the indeterminate penalty of three (3) months and eleven (11 ) days
of arresto mayor and to indemnify the heirs of Isidoro Casino in the sum of
Twelve Thousand Pesos (P12,000.00) without, however, any subsidiary
imprisonment in case of insolvency, and to pay the costs." 3(3)
Petitioner now appeals to this Court on the following assignments of errors:
The Court of Appeals erred in holding that when the petitioner saw a car
travelling directly towards her, she should have stepped on the brakes
immediately or in swerving her vehicle to the right should have also stepped on
the brakes or lessened her speed, to avoid the death of a pedestrian.
II
The Court of Appeals erred in convicting the petitioner of the crime of

Homicide thru Simple Imprudence.
III
The Court of Appeals erred in adjudging the petitioner liable to

indemnify the deceased in the sum of P12,000.00. 4(4)
We reverse.
The test for determining whether or not a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this: Would a
prudent man in the position of the person to whom negligence is attributed foresee
harm to the person injured as a reasonable consequence of the course about to be
pursued? If so, the law imposes the duty on the doer to take precaution against its
mischievous results and the failure to do so constitutes negligence. 5(5)
A corollary rule is what is known in the law as the emergency rule. "Under that
rule, one who suddenly finds himself in a place of danger, and is required to act
without time to consider the best means that may be adopted to avoid the impending
danger, is not guilty of negligence, if he fails to adopt what subsequently and upon
reflection may appear to have been a better method, unless the emergency in which he

finds himself is brought about by his own negligence." 6(6)
Applying the above test to the case at bar, we find the petitioner not guilty of
the crime of Simple Imprudence resulting in Homicide.
The appellate court in finding the petitioner guilty said:
"The accused should have stepped on the brakes when she saw the car
going in the opposite direction followed by another which overtook the first by
passing towards its left. She should not only have swerved the car she was
driving to the right but should have also tried to stop or lessen her speed so that
she would not bump into the pedestrian who was crossing at the time but also
the jeepney which was then parked along the street." 7(7)
The course of action suggested by the appellate court would seem reasonable
were it not for the fact that such suggestion did not take into account the amount of
time afforded petitioner to react to the situation she was in. For it is undeniable that
the suggested course of action presupposes sufficient time for appellant to analyze the
situation confronting her and to ponder on which of the different courses of action
would result in the least possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was presented by the prosecution

with respect to the relative distances of petitioner to the parked jeepney and the
oncoming overtaking vehicle that would tend to prove that petitioner did have
sufficient time to reflect on the consequences of her instant decision to swerve her car
to the right without stepping on her brakes. In fact, the evidence presented by the
prosecution on this point is the petitioner's statement to the police 8(8) stating:
"Ang masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang

nagovertake sa sasakyan na aking kasalubong kung kaya ay aking kinabig sa
kanan ang aking kotse subalit siya naman biglang pagtawid ng tao o victim at
hindi ko na ho naiiwasan at ako ay wala ng magawa. Iyan ho ang buong
pangyayari nang nasabing aksidente." 9(9) (emphasis supplied)
The prosecution having presented this exhibit as its own evidence, we cannot
but deem its veracity to have been admitted by it. Thus, under the circumstances
narrated by petitioner, we find that the appellate court is asking too much from a mere
mortal like the petitioner who in the blink of an eye had to exercise her best judgment
to extricate herself from a difficult and dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be expected to act with all the
coolness of a person under normal conditions." 10(10) The danger confronting
petitioner was real and imminent, threatening her very existence. She had no
opportunity for rational thinking but only enough time to heed the very powerful
instinct of self-preservation.
Also, the respondent court itself pronounced that the petitioner was driving her
car within the legal limits. We therefore rule that the "emergency rule" enunciated
above applies with full force to the case at bar and consequently absolve petitioner
from any criminal negligence in connection with the incident under consideration.
We further set aside the award of damages to the heirs of the victim, who by
executing a release of the claim due them, had effectively and clearly waived their
right thereto.
WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY

GAN y YU of the crime of Homicide thru Simple Imprudence. She is no longer liable
for the P12,000.00 civil indemnity awarded by the appellate court to the heirs of the
victim.
SO ORDERED.
Feliciano, Bidin and Cortes, JJ ., concur.
Gutierrez, Jr., J ., on leave.
Footnotes
1. Penned by then CA Justice Lorenzo Relova, concurred in by Justices Ramon G.
Gaviola, Jr., and Mariano Serrano.
2. pp. 33-34, Rollo.
3. pp. 42-43. Rollo.
4. p. 15, Rollo.
5. Picart vs. Smith, 35 Phil. 809.
6. Siegel vs. Watson, 195 NW 867; Hickman v. Southern Pacific Transport Co., 262 So.
2d., 385, 262 La, 102; Robert v. Travelers Indemnity Co., 196 So. 2d. 657.
7. p. 42, Rollo.
8. Exhibit E.
9. p. 16, Rollo.
10. Smith v. Tate, 289 So. 2d 189.

Endnotes
1 (Popup - Popup)
1. Penned by then CA Justice Lorenzo Relova, concurred in by Justices Ramon G.
Gaviola, Jr., and Mariano Serrano.
2 (Popup - Popup)
2. pp. 33-34, Rollo.
3 (Popup - Popup)
3. pp. 42-43. Rollo.
4 (Popup - Popup)
4. p. 15, Rollo.
5 (Popup - Popup)
5. Picart vs. Smith, 35 Phil. 809.
6 (Popup - Popup)
6. Siegl vs. Watson, 195 NW 867; Hickman v. Southern Pacific Transport Co., 262 So.
2d., 385, 262 La, 102; Robert v. Travelers Indemnity Co., 196 So. 2d. 657.
7 (Popup - Popup)
7. p. 42, Rollo.
8 (Popup - Popup)
8. Exhibit E.

9 (Popup - Popup)
9. p. 16, Rollo.
10 (Popup - Popup)
10. Smith v. Tate, 289 So. 2d 189.

EN BANC
[G.R. No. 131588. March 27, 2001.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GLENN DE

LOS SANTOS, accused-appellant.
The Solicitor General for plaintiff-appellee.

Velasco Sabio & Tagum for accused-appellant.
SYNOPSIS
Early in the morning at the Maitum Highway, while several PNP trainees were
doing an "endurance run," an Isuzu Elf truck was seen coming at high speed toward
the trainees. Despite the hand signals of the guards, the vehicle kept its speed and hit
the trainees who fall one after the other. The driver, herein appellant, did not bother to
reduce his speed.
The Court is inclined to believe that the tragic event was more a product of
reckless imprudence than of malicious intent. The place of the incident was very dark
at the time, the victims were wearing black outfit and the guards had neither
reflectorized vests or gloves nor flashlights in giving hand signals. Appellant was
driving on the proper side of the road while the trainees were on the wrong lane with
their backs turned towards the oncoming vehicles from behind. Appellant claimed
that he must have been reeling from the blinding effect of the lights coming from the
other vehicle when he unknowingly plowed into the group of trainees. Hence, the
Court ruled appellant guilty of the complex crime of reckless imprudence resulting in
multiple homicide with serious physical injuries and less serious physical injuries. He
is also guilty of ten counts of reckless imprudence resulting in slight physical injuries.
Qualified by his failure to render assistance to his victims on the spot, the Court raised
his penalties by the next higher in degree.
SYLLABUS

1. REMEDIAL LAW; EVIDENCE; RULE WHEN CRIMINAL INTENT
WANTING. — Considering that death penalty is involved, the trial court should have
been more scrupulous in weighing the evidence. If we are to subscribe to the trial
court's finding that GLENN must have merely wanted to scare the rear guards, then
intent to kill was wanting. In the absence of a criminal intent, he cannot be held liable
for an intentional felony. All reasonable doubt intended to demonstrate negligence,
and not criminal intent, should be indulged. . . . It is a well-entrenched rule that if the
inculpatory facts are capable of two or more explanations — one consistent with the
innocence or lesser degree of liability of the accused, and the other consistent with his
guilt or graver responsibility — the Court should adopt the explanation which is more
favorable to the accused. TcDaSI
2. ID.; ID.; MOTIVE; ASSUMES IMPORTANCE IN DETERMINING

WHICH OF TWO CONFLICTING THEORIES OF AN INCIDENT IS MORE
LIKELY TO BE TRUE. — We are convinced that the incident, tragic though it was
in light of the number of persons killed and seriously injured, was an accident and not
an intentional felony. It is significant to note that there is no shred of evidence that
GLENN had an axe to grind against the police trainees that would drive him into
deliberately hitting them with intent to kill. Although proof of motive is not
indispensable to a conviction especially where the assailant is positively identified,
such proof is, nonetheless, important in determining which of two conflicting theories
of the incident is more likely to be true. Thus, in People v. Godinez, this Court said
that the existence of a motive on the part of the accused becomes decisive in
determining the probability or credibility of his version that the shooting was purely
accidental. Neither is there any showing of "a political angle of a leftist-sponsored
massacre of police elements disguised in a vehicular accident." Even if there be such
evidence, i.e., that the motive of the killing was in furtherance of a rebellion
movement, GLENN cannot be convicted because if such were the case, the proper
charge would be rebellion, and not murder.
3. CIVIL LAW; NEGLIGENCE; HOW DETERMINED. — The test for

determining whether a person is negligent in doing an act whereby injury or damage
results to the person or property of another is this: Could a prudent man, in the
position of the person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course actually pursued? If so, the law
imposes a duty on the actor to refrain from that course or to take precautions to guard
against its mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed by the ignoring of the admonition born of this
prevision, is always necessary before negligence can be held to exist.

4. CRIMINAL LAW; RECKLESS IMPRUDENCE; ELUCIDATED. —
Article 365 of the Revised Penal Code states that reckless imprudence consists in
voluntarily, but without malice, doing or failing to do an act from which material
damage results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration (1) his
employment or occupation; (2) his degree of intelligence; (4) his physical condition;
and (3) other circumstances regarding persons, time and place.
5. ID.; COMPLEX CRIME OF RECKLESS IMPRUDENCE RESULTING

IN MULTIPLE HOMICIDE WITH SERIOUS PHYSICAL INJURIES AND LESS
SERIOUS PHYSICAL INJURIES; CRIME COMMITTED IN CASE AT BAR. —
Considering that the incident was not a product of a malicious intent but rather the
result of a single act of reckless driving, GLENN should be held guilty of the
complex crime of reckless imprudence resulting in multiple homicide with serious
physical injuries and less serious physical injuries. Article 48 of the Revised Penal
Code provides that when the single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the same to be applied in its
maximum period. Since Article 48 speaks of felonies, it is applicable to crimes
through negligence in view of the definition of felonies in Article 3 as "acts or
omissions punishable by law" committed either by means of deceit (dolo) or fault
(culpa). In Reodica v. Court of Appeals, we ruled that if a reckless, imprudent, or
negligent act results in two or more grave or less grave felonies, a complex crime is
committed. Thus, in Lapuz v. Court of Appeals, the accused was convicted, in
conformity with Article 48 of the Revised Penal Code, of the complex crime of
"homicide with serious physical injuries and damage to property through reckless
imprudence," and was sentenced to a single penalty of imprisonment, instead of the
two penalties imposed by the trial court. Also, in Soriao v. Court of Appeals, the
accused was convicted of the complex crime of "multiple homicide with damage to
property through reckless imprudence" for causing a motor boat to capsize, thereby
drowning to death its twenty-eight passengers. CDScaT
6. REMEDIAL LAW; CRIMINAL PROCEDURE; INFORMATION;

RULE WHERE THERE ARE TWO OR MORE OFFENSES CHARGED IN
SINGLE INFORMATION AND ACCUSED FAILED TO OBJECT. — The slight
physical injuries caused by GLENN to the ten other victims through reckless
imprudence, would, had they been intentional, have constituted light felonies. Being
light felonies, which are not covered by Article 48, they should be treated and
punished as separate offenses. Separate informations should have, therefore, been
filed. It must be noted that only one information (for multiple murder, multiple
frustrated murder and multiple attempted murder) was filed with the trial court.
However, nothing appears in the record that GLENN objected to the multiplicity of
the information in a motion to quash before his arraignment. Hence, he is deemed to
have waived such defect. Under Section 3, Rule 120 of the Rules of Court, when two
or more offenses are charged in a single complaint or information and the accused
fails to object to it before trial, the court may convict the accused of as many offenses
as are charged and proved, and impose on him the penalty for each of them.
7. CRIMINAL LAW; RECKLESS IMPRUDENCE; IN FELONIES

THROUGH IMPRUDENCE, MODIFYING CIRCUMSTANCES NEED NOT BE
CONSIDERED IN THE IMPOSITION OF THE PENALTY. — Now, we come to
the penalty. Under Article 365 of the Revised Penal Code, any person who, by
reckless imprudence, shall commit any act which, had it been intentional, would
constitute a grave felony shall suffer the penalty of arresto mayor in its maximum
period to prision correccional in its medium period; and if it would have constituted a
light felony, the penalty of arresto menor in its maximum period shall be imposed.
The last paragraph thereof provides that the penalty next higher in degree shall be
imposed upon the offender who fails to lend on the spot to the injured parties such
help as may be in his hand to give. This failure to render assistance to the victim,
therefore, constitutes a qualifying circumstance because the presence thereof raises
the penalty by one degree. Moreover, the fifth paragraph thereof provides that in the
imposition of the penalty, the court shall exercise its sound discretion without regard
to the rules prescribed in Article 64. Elsewise stated, in felonies through imprudence
or negligence, modifying circumstances need not be considered in the imposition of
the penalty.
8. ID.; RECKLESS IMPRUDENCE RESULTING IN MULTIPLE

HOMICIDE WITH SERIOUS PHYSICAL INJURIES AND LESS SERIOUS
PHYSICAL INJURIES; RECKLESS IMPRUDENCE RESULTING IN SLIGHT
PHYSICAL INJURIES; PENALTY RAISED BY ONE DEGREE IN THE
PRESENCE OF A QUALIFYING CIRCUMSTANCE. — In the case at bar, it has
been alleged in the information and proved during the trial that GLENN "escaped
from the scene of the incident, leaving behind the victims." It being crystal clear that
GLENN failed to render aid to the victims, the penalty provided for under Article 365
shall be raised by one degree. Hence, for reckless imprudence resulting in multiple
homicide with serious physical injuries and less serious physical injuries, the penalty
would be prision correccional in its maximum period to prision mayor in its medium
period. Applying Article 48, the maximum of said penalty, which is prision mayor in
its medium period, should be imposed. For the separate offenses of reckless
imprudence resulting in slight physical injuries, GLENN may be sentenced to suffer,

for each count, the penalty of arresto mayor in its minimum period.
9. ID.; ID.; ID.; APPLICATION OF INDETERMINATE SENTENCE

LAW. — Under the Indeterminate Sentence Law, GLENN may be sentenced to
suffer an indeterminate penalty whose minimum is within the range of the penalty
next lower in degree to that prescribed for the offense, and whose maximum is that
which could properly be imposed taking into account the modifying circumstances.
Hence, for the complex crime of reckless imprudence resulting in multiple homicide
with serious physical injuries and less serious physical injuries, qualified by his
failure to render assistance to the victims, he may be sentenced to suffer an
indeterminate penalty ranging from arresto mayor in its maximum period to prision
correccional in its medium period, as minimum, to prision mayor in its medium
period, as maximum. As to the crimes of reckless imprudence resulting in slight
physical injuries, since the maximum term for each count is only two months the
Indeterminate Sentence Law will not apply.
10. ID.; ID.; ID.; ONLY DEATH INDEMNITY PROPER IN CASE AT

BAR. — Conformably with current jurisprudence, we reduce the trial court's award of
death indemnity from P75,000 to P50,000 for each group of heirs of the trainees
killed. Likewise, for lack of factual basis, we delete the awards of P30,000 to each of
those who suffered serious physical injuries and of P10,000 to each of those who
suffered minor physical injuries. cCaIET
DECISION
DAVIDE, JR., C.J : p
One may perhaps easily recall the gruesome and tragic event in Cagayan de
Oro City, reported over print and broadcast media, which claimed the lives of several
members of the Philippine National Police (PNP) who were undergoing an
"endurance run" as part of the Special Counter Insurgency Operation Unit Training.
Not much effort was spared for the search of the one responsible therefor, as herein
accused-appellant Glenn de los Santos (hereafter GLENN) immediately surrendered
to local authorities. GLENN was then charged with the crimes of Multiple Murder,
Multiple Frustrated Murder, and Multiple Attempted Murder in an information filed
with the Regional Trial Court of Cagayan de Oro City. The information reads as
follows:

That on or about October 05, 1995, in the early morning, at Maitum
Highway, within Barangay Puerto, Cagayan de Oro City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill, taking advantage of his driven motor vehicle, an Isuzu
Elf, and with treachery, did then and there willfully, unlawfully and feloniously
kill and inflict mortal wounds from . . . behind in a sudden and unexpected
manner with the use of said vehicle . . . members of the Philippine National
Police (PNP), undergoing a Special Training Course (Scout Class 07-95),
wearing black T-shirts and black short pants, performing an "Endurance Run"
of 35 kilometers coming from their camp in Manolo Fortich, Bukidnon, heading
to Regional Training Headquarters in Camp Alagar, Cagayan de Oro City,
running in a column of 3, with a distance of two feet, more or less, from one
trainee to another, thus forming a [sic] three lines, with a length of more or less
50 meters from the 1st man to the last man, unable to defend themselves,
because the accused ran or moved his driven vehicle on the direction of the
backs of the PNP joggers in spite of the continuous warning signals made by six
of the joggers, namely: PO1 Allan Tabacon Espana, Waldon Sinda Sacro,
Lemuel Ybanez Pangca, Artemio Jamil Villaflor, Nardo Omasas Collantes and
Joselito Buyser Escartin, who were at the rear echelon of said run, acting as
guards, by continuously waving their hands at the accused for him to take the
left lane of the highway, going to the City proper, from a distance of 100 meters
away from the jogger's rear portion, but which accused failed and refused to
heed; instead, he proceeded to operate his driven vehicle (an Isuzu Elf) on high
speed directly towards the joggers, thus forcing the rear guard[s] to throw
themselves to [a] nearby canal, to avoid injuries, then hitting, bumping, or
ramming the first four (4) victims, causing the bodies to be thrown towards the
windshields of said Isuzu Elf, breaking said windshield, and upon being aware
that bodies of the victims flew on the windshield of his driven vehicle, instead
of applying his brake, continued to travel on a high speed, this time putting off
its headlights, thus hitting the succeeding joggers on said 1st line, as a result
thereof the following were killed on the spot:
1. Vincent Labis Rosal 7. Antonio Flores Lasco
2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
6. Arnulfo Limbago Jacutin 12. Rolando Paremcio Pancito

While another trainee/victim, Antonio Palomino Mino, died few days after the
incident, while the following eleven (11) other trainee/victims were seriously
wounded, the accused thus performing all the acts of execution which would
produce the crime of Murder as a consequence but nevertheless did not produce
it by reason of some cause other than said accused's spontaneous desistance,
that is, by the timely and able medical assistance rendered on the following
victims which prevented their death, to wit: ACIDSc
1. Rey Go Boquis 7. Melchor Hinlo
2. Rene Tuako Calabria 8. Noel Ganzan Oclarit
3. Nonata Ibarra Erno 9. Charito Penza Gepala
4. Rey Tamayo Estofil 10. Victor Malicse Olavo
5. Joel Rey Migue Galendez 11. Bimbo Glabe Polboroza
6. Arman Neri Hernaiz
While the following Police Officers I (POI) sustained minor injuries, to wit:
1. Romanito Andrada 6. Romualdo Cotor Dacera
2. Richard Canoy Caday 7. Ramil Rivas Gaisano
3. Rey Cayusa 8. Dibangkita Magandang
4. Avelino Chua 9. Martin Olivero Pelarion
5. Henry Gadis Coubeta 10. Flordicante Martin Piligro
after which said accused thereafter escaped from the scene of the incident,
leaving behind the victims afore-enumerated helpless.
Contrary to Article 248, in relation to Article 6 of the Revised Penal

Code.
The evidence for the prosecution disclose that the Special Counter Insurgency
Operation Unit Training held at Camp Damilag, Manolo Fortich, Bukidnon, started
on 1 September 1995 and was to end on 15 October 1995. The last phase of the
training was the "endurance run" from said Camp to Camp Alagar, Cagayan de Oro
City. The run on 5 October 1995 started at 2:20 a.m. The PNP trainees were divided
into three columns: the first and second of which had 22 trainees each, and the third
had 21. The trainees were wearing black T-shirts, black short pants, and green and
black combat shoes. At the start of the run, a Hummer vehicle tailed the jogging
trainees. When they reached Alae, the driver of the Hummer vehicle was instructed to
dispatch advanced security at strategic locations in Carmen Hill. Since the jogging
trainees were occupying the right lane of the highway, two rear security guards were
assigned to each rear column. Their duty was to jog backwards facing the oncoming
vehicles and give hand signals for other vehicles to take the left lane. 1(1)
Prosecution witnesses Lemuel Y. Pangca and Weldon Sacro testified that they
were assigned as rear guards of the first column. They recalled that from Alae to
Maitum Highway, Puerto, Cagayan de Oro City, about 20 vehicles passed them, all of
which slowed down and took the left portion of the road when signaled to do so. 2(2)
While they were negotiating Maitum Highway, they saw an Isuzu Elf truck
coming at high speed towards them. The vehicle lights were in the high beam. At a
distance of 100 meters, the rear security guards started waving their hands for the
vehicle to take the other side of the road, but the vehicle just kept its speed, apparently
ignoring their signals and coming closer and closer to them. Realizing that the vehicle
would hit them, the rear guards told their co-trainees to "retract." The guards
forthwith jumped in different directions. Lemuel and Weldon saw their co-trainees
being hit by the said vehicle, falling like dominoes one after the other. Some were
thrown, and others were overrun by the vehicle. The driver did not reduce his speed
even after hitting the first and second columns. The guards then stopped oncoming
vehicles to prevent their comrades from being hit again. 3(3)
The trial court judge, together with the City Prosecutor, GLENN and his
counsel, conducted an ocular inspection of the place where the incident happened.
They then proceeded to inspect the Isuzu Elf at the police station. The City Prosecutor
manifested, thus:
The vehicle which we are now inspecting at the police station is the
same vehicle which [was] involved in the October 5, 1995 incident, an Isuzu Elf
vehicle colored light blue with strips painting along the side colored orange and
yellow as well as in front. We further manifest that . . . the windshield was
totally damaged and 2/3 portion of the front just below the windshield was
heavily dented as a consequence of the impact. The lower portion was likewise
damaged more particularly in the radiator guard. The bumper of said vehicle
was likewise heavily damaged in fact there is a cut of the plastic used as a
bumper; that the right side of the headlight was likewise totally damaged. The
front signal light, right side was likewise damaged. The side mirror was
likewise totally damaged. The height of the truck from the ground to the lower
portion of the windshield is 5 ft. and the height of the truck on the front level is

5 ft. 4(4)
PO3 Jose Cabugwas testified that he was assigned at the Investigation Division
at Precinct 6, Cagayan de Oro City, and that at 4 a.m. of 5 October 1995, several
members of the PNP came to their station and reported that they had been bumped by
a certain vehicle. Immediately after receiving the report, he and two other policemen
proceeded to the traffic scene to conduct an ocular inspection. Only bloodstains and
broken particles of the hit-and-run vehicle remained on the highway. They did not see
any brake marks on the highway, which led him to conclude that the brakes of the
vehicle had not been applied. The policemen measured the bloodstains and found
them to be 70 ft. long. 5(5)
GLENN's version of the events that transpired that evening is as follows:
At about 10:30 p.m. of 4 October 1995, he was asked by his friend Enting
Galindez and the latter's fellow band members to provide them with transportation, if
possible an Isuzu Forward, that would bring their band instruments, band utilities and
band members from Macasandig and Corrales, Cagayan de Oro City, to Balingoan.
From there, they were supposed to be taken to Mambajao, Camiguin, to participate in
the San Miguel-sponsored "Sabado Nights" of the Lanzones Festival from 5-7
October 1995. It was the thirteenth time that Enting had asked such a favor from him.
6(6) Since the arrangement was to fetch Galindez and his group at 4:00 a.m. of 5
October 1995, GLENN immediately went to Cugman, Cagayan de Oro City, to get
his Isuzu Elf truck. After which, he proceeded back to his house at Bugo, Cagayan de
Oro City, and told his wife that he would go to Bukidnon to get his aunt's Isuzu
Forward truck because the twenty band members and nine utilities and band
instruments could not be accommodated in the Isuzu Elf truck. Three of his friends
asked to go along, namely, Roldan Paltonag, Andot Peña, and a certain Akut. 7(7)
After leaving GLENN's house, the group decided to stop at Celebrity Plaza
Restaurant. GLENN saw his "kumpare" Danilo Cosin and the latter's wife, and joined
them at the table. GLENN finished three bottles of pale pilsen beer. When the Cosin
spouses left, GLENN joined his travelling companions at their table. The group left at
12:00 midnight for Bukidnon. The environment was dark and foggy, with occasional
rains. It took them sometime looking for the Isuzu Forward truck. Finally, they saw
the truck in Agusan Canyon. Much to their disappointment, the said truck had
mechanical problems. Hence, GLENN decided to go back to Cagayan de Oro City to
tell Enting that they would use the Isuzu Elf truck instead. 8(8)
GLENN drove slowly because the road was slippery. The vicinity was dark:
there was no moon or star; neither were there lampposts. From the Alae junction, he
and his companions used the national highway, traversing the right lane going to
Cagayan de Oro City. At the vicinity of Mambatangan junction, as the Elf was
negotiating a left curve going slightly downward, GLENN saw a very bright and
glaring light coming from the opposite direction of the national highway. GLENN
blinked his headlights as a signal for the other driver to switch his headlights from
bright to dim. GLENN switched his own lights from bright to dim and reduced his
speed from 80 to 60 kilometers per hour. It was only when the vehicles were at a
distance of 10 to 15 meters from each other that the other car's headlights were
switched from bright to dim. As a result, GLENN found it extremely hard to adjust
from high brightness to sudden darkness. 9(9)
It was while the truck was still cruising at a speed of 60 km./hr., and
immediately after passing the oncoming vehicle, that GLENN suddenly heard and felt
bumping thuds. At the sound of the first bumping thuds, GLENN put his right foot on
the brake pedal. But the impact was so sudden that he was astonished and afraid. He
was trembling and could not see what were being bumped. At the succeeding
bumping thuds, he was not able to pump the brake, nor did he notice that his foot was
pushing the pedal. He returned to his senses only when one of his companions woke
up and said to him: "Gard, it seems we bumped on something. Just relax, we might all
die." Due to its momentum, the Elf continued on its track and was able to stop only
when it was already very near the next curve. 10(10)
GLENN could not distinguish in the darkness what he had hit, especially since
the right headlights of the truck had been busted upon the first bumping thuds. In his
confusion and fear, he immediately proceeded home. GLENN did not report the
incident to the Puerto Police Station because he was not aware of what exactly he had
hit. It was only when he reached his house that he noticed that the grill of the truck
was broken; the side mirror and round mirror, missing; and the windshield, splintered.
Two hours later, he heard on Bombo Radyo that an accident had occurred, and he
realized that it was the PNP group that he had hit. GLENN surrendered that same day
to Governor Emano. 11(11)
The defense also presented Crescente Galindez, as well as Shirley Almazan of

the PAG-ASA Office, Cagayan de Oro City. The former testified that when he went
to GLENN's house at about 10:00 p.m. of 4 October 1995, there was heavy rain; and
at 12:00 midnight, the rain was moderate. He corroborated GLENN's testimony that
he (Crescente) went to GLENN's house that evening in order to hire a truck that
would bring the band instruments, band utilities and band members from Cagayan de
Oro to Camiguin for the Lanzones Festival. 12(12) Almazan, on the other hand,
testified that based on an observed weather report within the vicinity of Cagayan de
Oro City, there was rain from 8:00 p.m. of October 1995 to 2:00 a.m. the next day;
and the sky was overcast from 11:00 p.m. of 4 October 1995 to 5:00 a.m. of 5
October 1995. What she meant by "overcast" is that there was no break in the sky;
and, definitely, the moon and stars could not be seen. 13(13)
The prosecution presented rebuttal witness Danilo Olarita whose house was
just 100 meters away from the place where the incident occurred. He testified that he
was awakened on that fateful night by a series of loud thuds. Thereafter, a man came
to his house and asked for a glass of water, claiming to have been hit by a vehicle.
Danilo further stated that the weather at the time was fair, and that the soil was dry
and not muddy. 14(14)
In its decision of 26 August 1997, the trial court convicted GLENN of the
complex crime of multiple murder, multiple frustrated murder and multiple attempted
murder, with the use of motor vehicle as the qualifying circumstance. It sentenced
him to suffer the penalty of death and ordered him to indemnify each group of the
heirs of the deceased in the amount of P75,000; each of the victims of frustrated
murder in the amount of P30,000; and each of the victims of attempted murder in the
amount of P10,000. EDCcaS
Hence, this automatic review, wherein GLENN contends that the trial court
erred (a) in finding that he caused the Isuzu Elf truck to hit the trainees even after
seeing the rear guards waving and the PNP trainees jogging; (b) in finding that he
caused the truck to run even faster after noticing the first thuds; and (c) in finding that
he could still have avoided the accident from a distance of 150 meters, despite the
bright and glaring light from the oncoming vehicle.
In convicting GLENN, the trial court found that "the accused out of mischief
and dare-devilness [sic], in the exhilaration of the night breeze and having dr[u]nk at
least three bottles of beer earlier, merely wanted to scare the rear guard[s] and see
them scamper away as they saw him and his vehicle coming at them to ram them
down." 15(15)
Likewise, the OSG posits that "the evil motive of the appellant in injuring the
jogging trainees was probably brought by the fact that he had dr[u]nk a total of three
(3) bottles of beer earlier before the incident." 16(16)
Not to be outdone, the defense also advances another speculation, i.e., "the
possibility that [GLENN] could have fallen asleep out of sheer fatigue in that unholy
hour of 3:30 in the early morning, and thus was not able to stop his Isuzu Elf truck
when the bumping thuds were occurring in rapid succession; and after he was able to
wake up upon hearing the shout of his companions, it was already too late, as the
bumping thuds had already occurred." 17(17)
Considering that death penalty is involved, the trial court should have been
more scrupulous in weighing the evidence. If we are to subscribe to the trial court's
finding that GLENN must have merely wanted to scare the rear guards, then intent to
kill was wanting. In the absence of a criminal intent, he cannot be held liable for an
intentional felony. All reasonable doubt intended to demonstrate negligence, and not
criminal intent, should be indulged. 18(18)
From the convergence of circumstances, we are inclined to believe that the

tragic event was more a product of reckless imprudence than of a malicious intent on
GLENN's part.
First, as testified to by prosecution rebuttal witness Danilo Olarita, the place of

the incident was "very dark," as there was no moon. And according to PAG-ASA's
observed weather report within the vicinity of Cagayan de Oro City covering a radius
of 50 kilometers, at the time the event took place, the sky was overcast, i.e., there was
absolutely no break in the thick clouds covering the celestial dome globe; hence, there
was no way for the moon and stars to be seen. Neither were there lampposts that
illuminated the highway.
Second, the jogging trainees and the rear guards were all wearing black
T-shirts, black short pants, and black and green combat shoes, which made them hard
to make out on that dark and cloudy night. The rear guards had neither reflectorized
vests or gloves nor flashlights in giving hand signals.
Third, GLENN was driving on the proper side of the road, the right lane. On
the other hand, the jogging trainees were occupying the wrong lane, the same lane as
GLENN's vehicle was traversing. Worse, they were facing the same direction as
GLENN's truck such that their backs were turned towards the oncoming vehicles
from behind.
Fourth, no convincing evidence was presented to rebut GLENN's testimony

that he had been momentarily blinded by the very bright and glaring lights of the
oncoming vehicle at the opposite direction as his truck rounded the curve. He must
have been still reeling from the blinding effect of the lights coming from the other
vehicle when he plowed into the group of police trainees.
Indeed, as pointed out by appellant, instinct tells one 'to stop or swerve to a
safe place the moment he sees a cow, dog, or cat on the road, in order to avoid
bumping or killing the same"; and more so if the one on the road is a person. It would
therefore be inconceivable for GLENN, then a young college graduate with a
pregnant wife and three very young children who were dependent on him for support,
to have deliberately hit the group with his truck.
The conclusion of the trial court and the OSG that GLENN intentionally
rammed and hit the jogging trainees was premised on the assumption that despite the
first bumping thuds, he continued to accelerate his vehicle instead of applying his
brakes, as shown by the absence of brake marks or skid marks along the traffic scene.
cHCIDE
For its part, the defense attributed the continuous movement of GLENN's
vehicle to the confluence of the following factors:
1. The Isuzu Elf truck, a huge vehicle, was moving fast that even if
the brakes were applied the truck would have still proceeded
further on account of its momentum, albeit at a reduced speed, and
would have stopped only after a certain distance.
2. The national highway, from Alae to Puerto, Cagayan de Oro City,

was made of fine and smooth asphalt, free from obstructions on the
road such as potholes or excavations. Moreover, the highway was
going a little bit downward, more particularly from the first curve
to the place of incident. Hence, it was easier and faster to traverse a
distance of "20 to 25 meters which was the approximate aggregate
distance" from the first elements up to the 22nd or 23rd elements
of the columns.
3. The weight of each of the trainees (the average of which could be

50 kilograms only) could hardly make an impact on the 3,900
kilograms truck, which was moving at a speed ranging from 60 to
70 kilometers per hour.
4. Considering that the width of the truck from the right to the left
tires was wide and the under chassis was elevated, the truck could
just pass over two persons lying flat on the ground without its
rubber tires running over the bodies. Thus, GLENN would not
notice any destabilization of the rubber tires.
5. Since the police trainees were jogging in the same direction as the
truck was proceeding, the forward movements constituted a force
parallel to the momentum of the forward-moving truck such that
there was even much lesser force resisting the said ongoing
momentum.
It is a well-entrenched rule that if the inculpatory facts are capable of two or

more explanations — one consistent with the innocence or lesser degree of liability of
the accused, and the other consistent with his guilt or graver responsibility — the
Court should adopt the explanation which is more favorable to the accused. 19(19)
We are convinced that the incident, tragic though it was in light of the number
of persons killed and seriously injured, was an accident and not an intentional felony.
It is significant to note that there is no shred of evidence that GLENN had an axe to
grind against the police trainees that would drive him into deliberately hitting them
with intent to kill.
Although proof of motive is not indispensable to a conviction especially where

the assailant is positively identified, such proof is, nonetheless, important in
determining which of two conflicting theories of the incident is more likely to be true.
20(20) Thus, in People v. Godinez, 21(21) this Court said that the existence of a
motive on the part of the accused becomes decisive in determining the probability or
credibility of his version that the shooting was purely accidental.
Neither is there any showing of "a political angle of a leftist-sponsored

massacre of police elements disguised in a vehicular accident." 22(22) Even if there
be such evidence, i.e., that the motive of the killing was in furtherance of a rebellion
movement, GLENN cannot be convicted because if such were the case, the proper
charge would be rebellion, and not murder. 23(23)
GLENN's offense is in failing to apply the brakes, or to swerve his vehicle to

the left or to a safe place the moment he heard and felt the first bumping thuds. Had
he done so, many trainees would have been spared. HaAIES
We have once said:
A man must use common sense, and exercise due reflection in all his
acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then
through fear of incurring punishment. He is responsible for such results as
anyone might foresee and for acts which no one would have performed except
through culpable abandon. Otherwise his own person, rights and property, and
those of his fellow-beings, would ever be exposed to all manner of danger and
injury. 24(24)
The test for determining whether a person is negligent in doing an act whereby
injury or damage results to the person or property of another is this: Could a prudent
man, in the position of the person to whom negligence is attributed, foresee harm to
the person injured as a reasonable consequence of the course actually pursued? If so,
the law imposes a duty on the actor to refrain from that course or to take precautions
to guard against its mischievous results, and the failure to do so constitutes
negligence. Reasonable foresight of harm, followed by the ignoring of the admonition
born of this prevision, is always necessary before negligence can be held to exist.
25(25)
GLENN showed an inexcusable lack of precaution. Article 365 of the Revised

Penal Code states that reckless imprudence consists in voluntarily, but without
malice, doing or failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or failing to
perform such act, taking into consideration (1) his employment or occupation; (2) his
degree of intelligence; (4) his physical condition; and (3) other circumstances
regarding persons, time and place.
GLENN, being then a young college graduate and an experienced driver,

should have known to apply the brakes or swerve to a safe place immediately upon
hearing the first bumping thuds to avoid further hitting the other trainees. By his own
testimony, it was established that the road was slippery and slightly going downward;
and, worse, the place of the incident was foggy and dark. He should have observed
due care in accordance with the conduct of a reasonably prudent man, such as by
slackening his speed, applying his brakes, or turning to the left side even if it would
mean entering the opposite lane (there being no evidence that a vehicle was coming
from the opposite direction). It is highly probable that he was driving at high speed at
the time. And even if he was driving within the speed limits, this did not mean that he
was exercising due care under the existing circumstances and conditions at the time.
Considering that the incident was not a product of a malicious intent but rather
the result of a single act of reckless driving, GLENN should be held guilty of the
physical injuries and less serious physical injuries.
Article 48 of the Revised Penal Code provides that when the single act
constitutes two or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period. Since Article 48 speaks of
felonies, it is applicable to crimes through negligence in view of the definition of
felonies in Article 3 as "acts or omissions punishable by law" committed either by
means of deceit (dolo) or fault (culpa). 26(26) In Reodica v. Court of Appeals, 27(27)
we ruled that if a reckless, imprudent, or negligent act results in two or more grave or
less grave felonies, a complex crime is committed. Thus, in Lapuz v. Court of
Appeals, 28(28) the accused was convicted, in conformity with Article 48 of the
Revised Penal Code, of the complex crime of "homicide with serious physical injuries
and damage to property through reckless imprudence," and was sentenced to a single
penalty of imprisonment, instead of the two penalties imposed by the trial court. Also,
in Soriao v. Court of Appeals, 29(29) the accused was convicted of the complex crime
of "multiple homicide with damage to property through reckless imprudence" for
causing a motor boat to capsize, thereby drowning to death its twenty-eight
passengers.
The slight physical injuries caused by GLENN to the ten other victims through
reckless imprudence, would, had they been intentional, have constituted light
felonies. Being light felonies, which are not covered by Article 48, they should be
treated and punished as separate offenses. Separate informations should have,
therefore, been filed.
It must be noted that only one information (for multiple murder, multiple
frustrated murder and multiple attempted murder) was filed with the trial court.
However, nothing appears in the record that GLENN objected to the multiplicity of
the information in a motion to quash before his arraignment. Hence, he is deemed to
have waived such defect. 30(30) Under Section 3, Rule 120 of the Rules of Court,
when two or more offenses are charged in a single complaint or information and the
accused fails to object to it before trial, the court may convict the accused of as many
offenses as are charged and proved, and impose on him the penalty for each of them.
ESITcH
Now, we come to the penalty. Under Article 365 of the Revised Penal Code,
any person who, by reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony shall suffer the penalty of arresto mayor
in its maximum period to prision correccional in its medium period; and if it would
have constituted a light felony, the penalty of arresto menor in its maximum period
shall be imposed. The last paragraph thereof provides that the penalty next higher in
degree shall be imposed upon the offender who fails to lend on the spot to the injured
parties such help as may be in his hand to give. This failure to render assistance to the
victim, therefore, constitutes a qualifying circumstance because the presence thereof
raises the penalty by one degree. 31(31) Moreover, the fifth paragraph thereof
provides that in the imposition of the penalty, the court shall exercise its sound
discretion without regard to the rules prescribed in Article 64. Elsewise stated, in
felonies through imprudence or negligence, modifying circumstances need not be
considered in the imposition of the penalty. 32(32)
In the case at bar, it has been alleged in the information and proved during the
trial that GLENN "escaped from the scene of the incident, leaving behind the
victims." It being crystal clear that GLENN failed to render aid to the victims, the
penalty provided for under Article 365 shall be raised by one degree. Hence, for
reckless imprudence resulting in multiple homicide with serious physical injuries and
less serious physical injuries, the penalty would be prision correccional in its
maximum period to prision mayor in its medium period. Applying Article 48, the
maximum of said penalty, which is prision mayor in its medium period, should be
imposed. For the separate offenses of reckless imprudence resulting in slight physical
injuries, GLENN may be sentenced to suffer, for each count, the penalty of arresto
mayor in its minimum period.
Although it was established through the testimonies of prosecution witness

Lemuel Pangca 33(33) and of GLENN that the latter surrendered to Governor Emano
of Misamis Oriental, such mitigating circumstance need not be considered pursuant to
the aforestated fifth paragraph of Article 365.
Under the Indeterminate Sentence Law, GLENN may be sentenced to suffer an

indeterminate penalty whose minimum is within the range of the penalty next lower
in degree to that prescribed for the offense, and whose maximum is that which could
properly be imposed taking into account the modifying circumstances. Hence, for the
physical injuries and less serious physical injuries, qualified by his failure to render
assistance to the victims, he may be sentenced to suffer an indeterminate penalty
ranging from arresto mayor in its maximum period to prision correccional in its
medium period, as minimum, to prision mayor in its medium period, as maximum. As
to the crimes of reckless imprudence resulting in slight physical injuries, since the
maximum term for each count is only two months the Indeterminate Sentence Law
will not apply. AEcTCD
As far as the award of damages is concerned, we find a necessity to modify the

same. Conformably with current jurisprudence, 34(34) we reduce the trial court's
award of death indemnity from P75,000 to P50,000 for each group of heirs of the
trainees killed. Likewise, for lack of factual basis, we delete the awards of P30,000 to
each of those who suffered serious physical injuries and of P10,000 to each of those
who suffered minor physical injuries.
WHEREFORE, the decision of the Regional Trial Court, Branch 38, Cagayan
de Oro City, is hereby SET ASIDE, and another one is rendered holding herein
accused-appellant GLENN DE LOS SANTOS guilty beyond reasonable doubt of (1)
the complex crime of reckless imprudence resulting in multiple homicide with serious
physical injuries and less serious physical injuries, and sentencing him to suffer an
indeterminate penalty of four (4) years of prision correccional as minimum, to ten
(10) years of prision mayor, as maximum; and (2) ten (10) counts of reckless
imprudence resulting in slight physical injuries and sentencing him, for each count, to
the penalty of two (2) months of arresto mayor. Furthermore, the awards of death
indemnity for each group of heirs of the trainees killed are reduced to P50,000; and
the awards in favor of the other victims are deleted. Costs against accused-appellant.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban,

Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and
Sandoval-Gutierrez, JJ., concur.
Puno, J., is abroad on official business.
Footnotes
1. TSN, 19 March 1996, 5-15; 20 March 1996, 83-89.
2. TSN, 19 March 1996, 10-16; 20 March 1996, 87-90.
3. Id., 16-23; Id., 91-96.
4. Rollo, 26.
5. TSN, 27 March 1996, 6-16.
6. TSN, 15 July 1996, 12-16, 20; 17 July 1996, 124-125.
7. TSN, 15 July 2001, 15-19.
8. TSN, 15 July 2001, 19-28.
9. Id., 29-30; TSN, 16 July 1996, 80-83, 114.
10. TSN, 15 July 2001, 30-32, 64-66; TSN, 16 July 1996, 83-87, 108-109.
11. TSN, 15 July 1996, 32-36.
12. TSN, 17 July 1996, 125-128.
13. Id., 132-144.
14. TSN, 19 August 1996, 11-13.
15. Decision, 20; Rollo, 40.
16. Brief for the Appellee, 12; Rollo, 205.
17. Appellant's Brief, 53; Rollo, 150.
18. People v. Pacana, 47 Phil. 48, 57 [1924].
19. People v. Santos, 85 SCRA 630, 639 [1978].
20. People v. Zamora de Cortez, 59 Phil. 568, 569 [1934]; People v. Modesto, 25 SCRA
36, 50-51 [1968]; People v. Boholst-Caballero, 61 SCRA 180, 191 [1974]; People v.
Tabije, 113 SCRA 191, 197 [1982].
21. 106 Phil. 597, 606 [1959].
23. People v. Modesto, supra note 20, citing People v. Hernandez, 99 Phil. 515 [1956]
and People v. Yuzon, 101 Phil. 871 [1957].
24. U.S. v. Meleza, 14 Phil. 468, 470 [1909], cited in People v. Pugay, 167 SCRA 439,
448 [1988].
25. Picart v. Smith, 37 Phil. 809, 813 [1918].
26. 1 LUIS B. REYES, THE REVISED PENAL CODE 661-662 (1993), citing People v.
Castro, 40 O.G., Supp. 12, 83.
27. 292 SCRA 87, 102 [1998].
28. 94 Phil. 710 [1954], cited in People v. Malabanan, 2 SCRA 1185 [1961], and People
v. Cuyos, 160 SCRA 302 [1988].
29. 175 SCRA 518 [1989].
30. Reodica v. Court of Appeals, supra note 27, at 103.
31. Ibabao v. People, 132 SCRA 216, 221 [1984].
32. See also People v. Agito, 103 Phil. 526, 529-530 [1958]; People v. Medroso, 62
SCRA 245, 249 [1975].
33. TSN, 19 March 1996, 25.
34. People v. Enguito, supra note 28; People v. Bautista, G.R. No. 131840, 27 April
2000.

Endnotes
1 (Popup - Popup)
1. TSN, 19 March 1996, 5-15; 20 March 1996, 83-89.
2 (Popup - Popup)
2. TSN, 19 March 1996, 10-16; 20 March 1996, 87-90.
3 (Popup - Popup)
3. Id., 16-23; Id., 91-96.
4 (Popup - Popup)
4. Rollo, 26.
5 (Popup - Popup)
5. TSN, 27 March 1996, 6-16.
6 (Popup - Popup)
6. TSN, 15 July 1996, 12-16, 20; 17 July 1996, 124-125.
7 (Popup - Popup)
7. TSN, 15 July 2001, 15-19.
8 (Popup - Popup)
8. TSN, 15 July 2001, 19-28.
9 (Popup - Popup)
9. Id., 29-30; TSN, 16 July 1996, 80-83, 114.

10 (Popup - Popup)
10. TSN, 15 July 2001, 30-32, 64-66; TSN, 16 July 1996, 83-87, 108-109.
11 (Popup - Popup)
11. TSN, 15 July 1996, 32-36.
12 (Popup - Popup)
12. TSN, 17 July 1996, 125-128.
13 (Popup - Popup)
13. Id., 132-144.
14 (Popup - Popup)
14. TSN, 19 August 1996, 11-13.
15 (Popup - Popup)
15. Decision, 20; Rollo, 40.
16 (Popup - Popup)
16. Brief for the Appellee, 12; Rollo, 205.
17 (Popup - Popup)
18 (Popup - Popup)
18. People v. Pacana, 47 Phil. 48, 57 [1924].

19 (Popup - Popup)
19. People v. Santos, 85 SCRA 630, 639 [1978].
20 (Popup - Popup)
20. People v. Zamora de Cortez, 59 Phil. 568, 569 [1934]; People v. Modesto, 25 SCRA
36, 50-51 [1968]; People v. Boholst-Caballero, 61 SCRA 180, 191 [1974]; People v.
Tabije, 113 SCRA 191, 197 [1982].
21 (Popup - Popup)
21. 106 Phil. 597, 606 [1959].
22 (Popup - Popup)
23 (Popup - Popup)
23. People v. Modesto, supra note 20, citing People v. Hernandez, 99 Phil. 515 [1956]
and People v. Yuzon, 101 Phil. 871 [1957].
24 (Popup - Popup)
24. U.S. v. Meleza, 14 Phil. 468, 470 [1909], cited in People v. Pugay, 167 SCRA 439,
448 [1988].
25 (Popup - Popup)
25. Picart v. Smith, 37 Phil. 809, 813 [1918].
26 (Popup - Popup)
26. 1 LUIS B. REYES, THE REVISED PENAL CODE 661-662 (1993), citing People v.
Castro, 40 O.G., Supp. 12, 83.

27 (Popup - Popup)
27. 292 SCRA 87, 102 [1998].
28 (Popup - Popup)
28. 94 Phil. 710 [1954], cited in People v. Malabanan, 2 SCRA 1185 [1961], and People
v. Cuyos, 160 SCRA 302 [1988].
29 (Popup - Popup)
29. 175 SCRA 518 [1989].
30 (Popup - Popup)
30. Reodica v. Court of Appeals, supra note 27, at 103.
31 (Popup - Popup)
31. Ibabao v. People, 132 SCRA 216, 221 [1984].
32 (Popup - Popup)
32. See also People v. Agito, 103 Phil. 526, 529-530 [1958]; People v. Medroso, 62
SCRA 245, 249 [1975].
33 (Popup - Popup)
33. TSN, 19 March 1996, 25.
34 (Popup - Popup)
34. People v. Enguito, supra note 28; People v. Bautista, G.R. No. 131840, 27 April
2000.

FIRST DIVISION
[G.R. No. 65295. March 10, 1987.]
PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL,

petitioners, vs. THE INTERMEDIATE APPELLATE COURT and
LEONARDO DIONISIO, respondents.
DECISION
FELICIANO, J : p
In the early morning of 15 November 1975— at about 1:30 a.m. — private

respondent Leonardo Dionisio was on his way home — he lived in 1214-B Zamora
Street, 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. LLpr
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
care 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 P15,000.00 for
hospital bills and the replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P150,000.00 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 P100,000.00
as moral damages for the unexpected and sudden withdrawal of plaintiff from
his lifetime career as a marketing man; mental anguish, wounded feeling,
serious anxiety, social humiliation, besmirched reputation, feeling of economic
insecurity, and the untold sorrows and frustration in life experienced by plaintiff
and his family since the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P10,000.00 as

exemplary 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 P4,500.00 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 and P4,500.00 as attorney's

fees and costs remained untouched.
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. llcd
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(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. LibLex
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(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(3)
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was

hearsay and did not fall within any of the recognized exceptions to the hearsay rule
since the facts he testified to were not acquired by him through official information
and had not been given by the informants pursuant to any duty to do so. Private
respondent's objection fails to take account of the fact that the testimony of Patrolman
Cuyno is admissible not under the official records exception to the hearsay rule 4(4)
but rather as part of the res gestae. 5(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(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
which 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. prcd

A fourth and final issue relates to whether Dionisio was intoxicated at the time
of the accident. The evidence here consisted of the testimony of Patrolman Cuyno to
the effect that private respondent Dionisio smelled of liquor at the time he was taken
from his smashed car and brought to the Makati Medical Center in an unconscious
condition. 7(7) This testimony has to be taken in conjunction with the admission of
Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that
night. We do not believe that this evidence is sufficient to show that Dionisio was so
heavily under the influence of liquor as to constitute his driving a motor vehicle per
se an act of reckless imprudence. 8(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 Prosser and Keeton make this quite clear: LibLex
"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 falls into it a month afterward. "Cause" and "condition"
still find occasional mention in the decisions; but the distinction is now almost
entirely discredited. So far as it has any validity at all, it must refer to the type
of case where the forces set in operation by the defendant have come to rest in a
position of apparent safety, and some new force intervenes. But even in such
cases, it is not the distinction between "cause" and "condition" which is
important, but the nature of the risk and the character of the intervening cause."
9(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 all
probability not have occurred had the dump truck not been parked askew without any
warning lights or reflector devices. The improper parking of the dump truck created
an unreasonable risk of injury for anyone driving down General Lacuna Street and for
having so created this risk, the truck driver must be held responsible. In our 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 consequence of the risk created by the negligent manner in
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
Prosser and Keeton: prLL

"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 negligent, among other reasons, because of failure to guard
against it; or the defendant may be negligent only for that reason. Thus one
who sets a fire may be required to foresee that an ordinary, usual and customary
wind arising later will spread it beyond the defendant's own property, and
therefore to take precautions to prevent that event. The person who leaves the
combustible or explosive material exposed in a public place may foresee the
risk of fire from some independent source. . . . In all of these cases there is an
intervening cause combining with the defendant's 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 of the 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. . . . [T]he 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(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). LexLib

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 by Picart vs. Smith 11(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(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(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(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(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 foreseeable
consequences of his own negligent act or omission. Our law on quasi-delicts seeks to
reduce the risks and burdens of living in society and to allocate them among the
members of society. To accept the petitioners' proposition must tend to weaken the
very bonds of society. cdll
Petitioner Carbonel's proven negligence creates a presumption of negligence

on the part of his employer Phoenix 16(16) in supervising its employees properly and
adequately. The respondent appellate court in effect found, correctly in our opinion,
that Phoenix was not able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver to bring the dump truck to his
home whenever there was work to be done early the following morning, when
coupled with the failure to show any effort on the part 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(17) we believe that the demands of substantial justice
are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the
damages awarded by the respondent appellate court, except the award of P10,000.00
as exemplary damages and P4,500.00 as attorney's fees and costs, shall be borne by
private respondent; only the balance of 80% needs to be paid by petitioners Carbonel
and Phoenix who shall be solidarily liable therefor to the former. The award of
exemplary damages and attorney's fees and costs shall be borne exclusively by the
petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18(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. cdphil
SO ORDERED.
Yap, Narvasa, Cruz, Gancayco and Sarmiento, JJ ., concur.
Melencio-Herrera, J ., on official leave.
Footnotes
1. TSN, 16 March 1978, pp. 25-26.
2. TSN, 16 March 1978, p. 13.
3. TSN, 23 February 1977, pp. 13-14; TSN, 7 October 1977, pp. 24-25.
4. Rule 130, Section 38, Rules of Court.
6. People v. Berame, 72 SCRA 184 [1976]; McCormick on Evidence, Section 297 [3rd
ed., 1984].
7. TSN, 16 March 1978, pp. 18-19.
8. Compare Wright v. Manila Railroad Co., 28 Phil. 116 (1914), where it was held,
among others, that "[m]ere intoxication is not negligence, nor does the mere fact of
intoxication establish a want of ordinary care. It is but a circumstance to be
considered with the other evidence tending to prove negligence." Id., at 125.
9. The Law on Torts [5th ed.; 1984], pp. 277-278; italics supplied; footnotes omitted.
10. Ibid., pp. 303-305; italics supplied; footnotes omitted.
11. 37 Phil. 809 (1918).
12. Prosser & Keeton, supra note 9, p. 464 and note 11.
13. See Rakes v. Manila Railroad Co., 7 Phil. 359, at 370 (1907).
14. MacIntyre, The Rationale of Last Clear Chance, 53 Harv. L. Rev. 1225 (1940) and
James, Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704 (1938).
15. See Rakes, 7 Phil. at 374.
16. Poblete v. Fabros, 93 SCRA 202 (1979); Umali v. Bacani, 69 SCRA 263 (1976); and
Saludares v. Martinez, 29 SCRA 745 (1969).
17. See Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil. 359, 370-375 (1907), where the
Court allocated the damages on a 50-50 basis between plaintiff and defendant
applying the notion of comparative negligence or proportional damages. Cf. Taylor v.
Manila Electric Railroad and Light Co., 16 Phil. 8 at 29 (1910).
18. Lanuzo v. Ping, 100 SCRA 205 (1980).

Endnotes
1 (Popup - Popup)
1. TSN, 16 March 1978, pp. 25-26.
2 (Popup - Popup)
2. TSN, 16 March 1978, p. 13.
3 (Popup - Popup)
3. TSN, 23 February 1977, pp. 13-14; TSN, 7 October 1977, pp. 24-25.
4 (Popup - Popup)
5 (Popup - Popup)
6 (Popup - Popup)
6. People v. Berame, 72 SCRA 184 [1976]; McCormick on Evidence, Section 297 [3rd
ed., 1984].
7 (Popup - Popup)
7. TSN, 16 March 1978, pp. 18-19.
8 (Popup - Popup)
8. Compare Wright v. Manila Railroad Co., 28 Phil. 116 (1914), where it was held,
among others, that "[m]ere intoxication is not negligence, nor does the mere fact of
intoxication establish a want of ordinary care. It is but a circumstance to be
considered with the other evidence tending to prove negligence." Id., at 125.

9 (Popup - Popup)
9. The Law on Torts [5th ed.; 1984], pp. 277-278; italics supplied; footnotes omitted.
10 (Popup - Popup)
10. Ibid., pp. 303-305; italics supplied; footnotes omitted.
11 (Popup - Popup)
11. 37 Phil. 809 (1918).
12 (Popup - Popup)
12. Prosser & Keeton, supra note 9, p. 464 and note 11.
13 (Popup - Popup)
13. See Rakes v. Manila Railroad Co., 7 Phil. 359, at 370 (1907).
14 (Popup - Popup)
14. MacIntyre, The Rationale of Last Clear Chance, 53 Harv. L. Rev. 1225 (1940) and
James, Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704 (1938).
15 (Popup - Popup)
15. See Rakes, 7 Phil. at 374.
16 (Popup - Popup)
16. Poblete v. Fabros, 93 SCRA 202 (1979); Umali v. Bacani, 69 SCRA 263 (1976); and
Saludares v. Martinez, 29 SCRA 745 (1969).
17 (Popup - Popup)

17. See Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil. 359, 370-375 (1907), where the
Court allocated the damages on a 50-50 basis between plaintiff and defendant
applying the notion of comparative negligence or proportional damages. Cf. Taylor v.
Manila Electric Railroad and Light Co., 16 Phil. 8 at 29 (1910).
18 (Popup - Popup)
18. Lanuzo v. Ping, 100 SCRA 205 (1980).

FIRST DIVISION
[G.R. No. 1719. January 23, 1907.]
M. H., RAKES, plaintiff-appellee, vs. THE ATLANTIC, GULF AND

PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs, for appellant.

F. G. Waite and Thimas Kepner, for appellee.
SYLLABUS
1. CIVIL LIABILITY FOR DAMAGES. — In order to enforce the liability

of an employer for injuries to his employee, it is not necessary that a criminal action
be first prosecuted against the employer or his representative primarily chargeable
with the accident. No criminal proceeding having been taken, the civil action may
proceed to judgment.
2. LIABILITY OF EMPLOYER TO WORKMEN. — The responsibility of

an employer to his employee of a fellow-servant of the employee injured, is not
adopted in Philippine jurisprudence.
3. FELLOW-SERVANT RULE. — The doctrine known as the

"Fellow-servant rule," exonerating the employer where the injury was incurred
through the negligence of a fellow-servant of the employee injured, is not adopted in
Philippine jurisprudence.
4. CONTRIBUTORY NEGLIGENCE. — The negligence of the injured

person contributing to his injury but not being one of the determining causes of the
principal accident, does not operate as a bar to recovery, but only in reduction of his
damages. Each party is chargeable with damages in proportion to his fault.
DECISION

TRACEY, J : p
This is an action for damages. The plaintiff, one of a gang of eight negro
laborers in the employment of the defendant, was at work transporting iron rails from
a barge in the harbor to the company's yard near the malecon in Manila. Plaintiff
claims that but one hand car was used in this work. The defendant has proved that
there were two immediately following one another, upon which were piled lengthwise
seven rails, each weighing 560 pounds, so that the ends of the rails lay upon two
crosspieces or sills secured to the cars, but without side pieces or guards to prevent
them from slipping off. According to the testimony of the plaintiff, the men were
either in the rear of the car or at its sides. According to that defendant, some of them
were also in front, hauling by a rope. At a certain spot at or near the water's edge the
track sagged, the tie broke, the car either canted or upset, the rails slid off and caught
the plaintiff, breaking his leg, which was afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened
through the negligence of the defendant. The detailed description by the defendant's
witnesses of the construction and quality of the track proves that if was up to the
general stranded of tramways of that character, the foundation consisting on land of
blocks or crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid, on
the surface of the ground, upon which at a right angle rested stringers of the same
thickness, but from 24 to 30 feet in length. On the across the stringers the parallel
with the blocks were the ties to which the tracks were fastened. After the road reached
the water's edge, the blocks or crosspieces were replaced with pilling, capped by
timbers extending from one side to the other. The tracks were each about 2 feet wide
and the two inside rails of the parallel tracks about 18 inches apart. It was admitted
that there were no side pieces or guards on the car; that where no ends of the rails of
the track met each other and also where the stringers joined, there were no fish plates.
the defendant has not effectually overcome the plaintiff's proof that the joints between
the rails were immediately above the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was
the immediate occasion of the accident, is not clear in the evidence, but is found by
the trial court and is admitted in the briefs and in the argument to have been the
dislodging of the crosspiece or piling under the stringer by the water of the bay raised
by a recent typhoon. The superintendent of the company attributed it to the giving
way of the block laid in the sand. No effort was made to repair the injury at the time
of the occurrence. According to plaintiffs witnesses, a depression of the track, varying
from one half inch to one inch and a half, was thereafter apparent to the eye, and a
fellow workman of the plaintiff swears that the day before the accident he called the
attention of McKenna, the foreman, to it and asked by simply straightening out the
crosspiece, resetting the block under the stringer and renewing the tie, but otherwise
leaving the very same timbers as before. It has not proven that the company inspected
the track after the typhoon or had any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a

breach of duty on its part in failing either to properly secure the load on iron to
vehicles transporting it, or to skillfully build the tramway or to maintain it in proper
condition, or to vigilantly inspect and repair the roadway as soon as the depression in
it became visible. It is upon the failure of the defendant to repair the weakened track,
after notice of its condition, that the judge below based his judgment.
This case presents many important matters for our decision, and first among
them is the standard of duty which we shall establish in our jurisprudence on the part
of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries
to enact designed to put these relations on a fair basis in the form of compensation or
liability laws or the institution of insurance. In the absence of special legislation we
find no difficulty in so applying the general principles of our law as to work out a just
result.
Article 1092 of the Civil Code provides:
"Civil obligations, arising from crimes or misdemeanors, shall be governed by

the provisions of the Penal Code."
And article 568 of the latter code provides:
"He who shall execute through reckless negligence an act that if done with
malice would constitute a grave crime, shall be punished."
And article 590 provides that the following shall be punished:
"4. Those who by simple imprudence or negligence, without committing any

infraction of regulations, shall cause an injury which, had malice intervened, would
have constituted a crime or misdemeanor."
And finally by articles 19 and 20, the liability of owners and employers for the
faults of their servants and representatives is declared to be civil and subsidiary in its
character.
It is contented by the defendant, as its first defense to the action, that the
necessary conclusion from these collated laws is that the remedy for injuries through
negligence lies only in a criminal action in which the official criminally responsible
must be made primarily liable and his employer held only subsidiarily to him.
According to this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the tract, and on his
prosecution a suitable fine should have been imposed, payable primarily by him and
secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject.
Article 1093 of the Civil Code makes obligations arising from faults or negligence not
punished by the law, subject to the provisions of Chapter 11 of Title XVI. Section
1902 of that chapter reads:
"A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceding article is

demandable, not only for personal acts and omissions, but also for those of the
persons for whom they should be responsible.
"The father, and on his death or incapacity, the mother, is liable for the
damages caused by the minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally liable for the

damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to
avoid the damages.'
As an answer to the argument urged in this particular action it may be

sufficient to point out that nowhere in our general statutes is the employer penalized
for failure to provide or maintain safe appliances for his workmen. His obligation
therefore is one "not punished by the law " and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should be reluctant, under
any conditions, to adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these articles of effect, would shut
out litigants their will from the civil courts, would make the assertion of their rights
dependent upon the selection for prosecution of the proper criminal offender, and
render recovery doubtful by reason of the strict rules of proof prevailing in criminal
actions. Even if these articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the provisions of the
Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which,
though n ever in actual force in these Islands, was formerly given a suppletory or
explanatory effect. Under article 111 of this law, both classes of action, civil and
criminal, might be prosecuted jointly or separately, but while the penal action was
pending the civil was suspended. According to article 112, the penal action once
started, the civil remedy should be sought therewith, unless it had been waived by the
party injured or been expressly reserved by him for civil proceedings for the future. If
the civil action alone was prosecuted, arising out of a crime that could be enforced by
only on private complaint, the penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of our Penal Code on the
same subject.
An examination of this topic might be carried much further, but the citations of
these articles suffices to show that the civil liability was not intended to be merged in
the criminal nor even to be suspended thereby, except as expressly provided by law.
Where an individual is civilly liable for a negligent act or omission, it is not required
that the inured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be

regarded as subsidiary in respect of criminal actions against his employees only while
they are process of prosecution, or in so far as they determinate the existence of the
criminal act from which liability arises, and his obligation under the civil law and its
enforcement in the civil courts is not barred thereby unless by election of the injured
person. Inasmuch as no criminal in question, the provisions of the Penal Code can not
affect this action. This construction renders it unnecessary to finally determine here
whether this subsidiary civil liability in penal actions survived the laws that fully
regulated it or has been abrogated by the American civil and criminal procedure now
in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case
appears from the briefs before us to have arisen from the interpretation of the words
of article 1093, "fault or negligence not punished by law," as applied to the
comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has
been shown that the liability of an employer arising out of his relation to his employee
who is the offender is not to be regarded as derived from negligence punished by the
law, within the meaning of articles 1092 and 1093. More than this, however, it can
not be said to fall within the class of acts unpunished by the law, the consequences of
which are regulated by articles 1902 and 1903 of the Civil Code. The acts to which
these articles are applicable are understood to be those and growing out of preexisting
duties of the parties to one another. But were relations already formed give rise to
duties, whether springing from contract or quasi contract, then breaches of those
duties are subject to articles 1101, 1103, and 1104, of the same code. A typical
application of the distinction may be found in the consequences of a railway accident
due to defective machinery supplied by the employer. His liability to his employee
would arise out of the contract of employment, that to the passengers out of the
contract for passage. while that to that injured bystander would originate in the
negligent act itself. This distinction is thus clearly set forth by Manresa in his
commentary on article 1093.
"We are with reference to such obligations, that culpa, or negligence, may be
understood in two difference senses; either as culpa, substantive and independent,
which on account of its origin arises in an obligation between two persons not
formerly bound by any other obligation; or as an incident in the performance of an
obligation; or as already existed, which can not be presumed to exist without the
other, and which increases the liability arising from the already exiting obligation.
"Of these two species of culpa the first one mentioned, existing by itself, may
be also considered as a real source of an independent obligation, and, as chapter 2,
title 16 of this book of the code is devoted to it, it is logical to presume that the
reference contained in article 1093 is limited thereto and that it does not extend to
those provisions relating to the other species of culpa (negligence), the nature of
which we will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two
species of negligence may be somewhat inexactly described as contractual and
extra-contractual, the letter being the culpa aquiliana of the Roman law and not
entailing so strict an obligation as the former. This terminology is unreservedly
accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II,
No. 12), and the principle stated is supported be decisions of the supreme court of
Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151),
and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and
not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident

Law of January 30, 1900, throws uncertain light on the relation between master and
workman. Moved by the quick industrial development of their people, the courts of
France early applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French commentators.
The original French theory, resting the responsibility of owners of industrial

enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon, corresponding
in scope to articles 1902 and 1903 of the Spanish Code, soon yielded to the principle
that the true basis is the contractual obligation of the employer and employee. (See 18
Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for
employment led to the discovery of a third basis for liability in an article of he French
Code making the possessor of any object answerable for damage done by it while in
his charge. Our law having no counterpart of this article, applicable to every kind of
object, we need consider neither the theory growing out of it nor that of "professional
risk" more recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, find a rule for this case in the
contractual obligation. This contractual obligation, implied from the relation and
perhaps so inherent in its nature to be invariable by the parties, binds the employer to
provide safe appliances for the use of the employee, thus closely corresponding to
English and American Law. On these principles it was the duty of the defendant to
build and to maintain its track in reasonably sound condition, so as to protect its
workingmen from unnecessary danger. It is plain that in one respect or the other it
failed in its duty, otherwise the accident could not have occurred; consequently the
negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a
risk incident to his employment and, as such, one assumed by him. It is evident that
this can not be the case if the occurrence was due to the failure to repair the track or to
duly inspect, it for the employee is not presumed to have stipulated that the employer
might neglect his legal duty. Nor may it be excused upon the ground that the
negligence leading to the accident was that of a fellow-servant of the injured man. It
is not apparent to us that the intervention of a third person can relieve the defendant
from the performance of its duty nor impose upon the plaintiff the consequences of an
act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the
fellow-servant rule," we are not disposed to introduce into our jurisprudence. Adopted
in England by Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby,
1) in 1837, it has since been effectually abrogated by "the Employers' Liability Acts"
and the "Compensation Law." The American States which applied it appear to be
gradually getting rid of it; for instance, the New York State legislature of 1906 did
away with it in respect to railroad companies, and had in hand a scheme for its total
abolition. It has never found place in the civil law of continental Europe. (Dalloz, vol.
39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more
recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its
judgment of June 28, 1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the
plaintiff, contributing to the accident, to what extent it existed in fact and what legal
effect is to be given it. In two particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his
work; and
Second. That he walked on the ends of the ties at the side of the car instead
of along the boards, either before or behind it.
As to the first point, the depression in the track night indicate either a serious
or a rival difficulty. There is nothing in the evidence to show that the plaintiff did or
could see the displaced timber underneath the sleeper. The claim that he must have
done so is a conclusion drawn from what is assumed to have been a probable
condition of things not before us, rather than a fair inference from the testimony.
While the method of construction may have been known to the men who had helped
build the road, it was otherwise with the plaintiff who had worked at this job less than
two days. A man may easily walk along a railway without perceiving a displacement
of the underlying timbers. The foreman testified that he knew the state of the track on
the day of the accident and that it was then in good condition, and one Danridge, a
witness for the defendant, working on the same job, swore that he never noticed the
depression in the track and never saw any bad place in it. The sagging of the track this
plaintiff did perceive, but that was reported in his hearing to the foreman who neither
promised nor refused to repair it. His lack of caution in continuing at his work after
noticing the slight depression of the rail was not of so gross a nature as to constitute
negligence, barring his recovery under the severe American rule. On this point we
accept the conclusion of the trial judge who found as facts that "the plaintiff did not
know the cause of the one rail being lower than then other" and "it does not appear in
this case that the plaintiff knew before the accident occurred that the stringers and
rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless,
be binding upon us, because not "plainly and manifestly against the weight of
evidence," as those words of section 497, paragraph 3 of the Code of Civil Procedure
were interpreted by the Supreme Court of the United States in the De la Rama case

(201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the

judgment below is not so specific. While the judge remarks that the evidence does not
justify the finding that the car was pulled by means of a rope attached to the front end
or to the rails upon it, and further that the circumstances in evidence make it clear that
the persons necessary to operate the car could not walk upon the plank between the
rails and that, therefore, it was necessary for the employees moving it to get hold
upon it as best they could, there is no specific finding upon the instruction given by
the defendant to its employees to walk only upon the planks, nor upon the necessity
of the plaintiff putting himself upon the ties at the side in order to get hold upon the
car. Therefore the findings of the judge below leave the conduct of the plaintiff in
walking along the side of the loaded car, upon the open ties, over the depressed track,
free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not
forbidden to proceed in this way, but were expressly directed by the foreman to do so,
both the officers of the company and three of the workmen testify that there was a
general prohibition frequently made known to all the gang against walking by the side
of the car, and the foreman swears that he repeated the prohibition before the starting
of this particular load. On this contradiction of proof we think that the preponderance
is in favor of the defendant's contention to the extent of the general order being made
known to the workmen. If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate, although not as its
primary cause. This conclusion presents sharply the question, What effect is to be
given such an act of contributory negligence? Does it defeat a recovery, according to
the American rule, or is it to be taken only in reduction of damages?
While a few of the American States have adopted to a greater or less extent the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own act
contributed to his injury, provided his negligence was slight as compared with that of
the defendant, and some others have accepted the theory of proportional damages,
reducing the award to a plaintiff in proportion to his responsibility for the accident,
yet the overwhelming weight of adjudication establishes the principle in American
jurisprudence that any negligence, however slight, on the part of the person injured
which is one of the causes proximately contributing to his injury, bars his recovery.
(English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the
Supreme Court of the United States thus authoritatively states the present rule of law:
"Although the defendant's' negligence may have been the primary cause of the
injury complained of, yet an action for such injury can not be maintained if the
proximate and immediate cause of the injury can be traced to the want of ordinary
care and caution in the person injured; subject to this qualification, which has grown
up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W.,
546) that the contributory negligence of the party injured will not defeat the action if
it be shown that the defendant might, by the exercise of reasonable care and prudence,
have avoided the consequences of the injured party's negligence."
There are may cases in the supreme court of Spain in which the defendant was
exonerated, but when analyzed they prove to have been decided either upon the point
that he was not negligent or that the negligence of the plaintiff was the immediate
cause of the casualty or that the accident was due to casus fortuitus. Of the first class
in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No. 70), in which a
railway employee, standing on a car, was thrown therefrom and killed by the shock
following the backing up of the engine. It was held that the management of the train
and engine being in conformity with proper rules of the company, showed no fault on
its part.
Of the second class are the decision of the 15th of January, the 19th of
February, and the 7th of March, 1902, stated in Alcubilla's Index of that year; and of
the third class the decision of the 4th of June, 1888 (64 Jurisprudencia Civil, No. 1),
in which the breaking down of plaintiff's dam by the logs of the defendant impelled
against it by the Tajo River, was held due to a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested
on two bases, one, that the defendant was not negligent, because expressly relieved by
royal order from the common obligation imposed by the police law of maintaining a
guard at the road crossing; the other, because the act of the deceased in driving over
level ground with unobstructed view in front of a train running at speed, with the
engine whistle blowing was the determining cause of the accident. It is plain that the
train was doing nothing but what it had a right to do and that the only fault lay with
the injured man. His negligence was not contributory, it was sole, and was of such an
efficient nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that
the plaintiff sustaining damages was not free from contributory negligence; for
instance, the decision of the 14th of December, 1894 (76 Jurisprudencia Civil, No.
134), in which the owner of a building was held liable for not furnishing protection to
workmen engaged in hanging out flags, when the latter must have perceived

beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff
which contributed to his injury as one of its causes, though not the principal one, and
we are left to seek the theory of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held
that the carelessness of the victim did not civilly relieve the person without whose
fault the accident could not have happened, but that the contributory negligence of the
injured man had the effect only of reducing the damages. The same principle was
applied in the case of Recullet, November 10, 1888. and that of Laugier of the 11th of
November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor
are citations in Dalloz (vol. 18, 1806, Title Trial, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the
French Civil Law, now embodied in a code following the Code Napoleon, a practice
in accord with that of France is laid down in many cases collected in the annotations
to article 1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs.
Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, in which the
court of Kings bench, otherwise known as the court of appeals, the highest authority
in the Dominion of Canada on points of French law, held that contributory negligence
did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the
provincial courts have been overruled by appellate tribunals made up of common law
judges drawn from other provinces, who have preferred to impose uniformally
throughout the Dominion the English theory of contributory negligence. Such
decisions throw no light upon the doctrines of the civil law. Elsewhere we find this
practice embodied in legislation; for instance, section 2 of article 2398 of the Code of
Portugal reads as follows:
"If in the case of damage there was fault or negligence on the part of the
person injured or in the part of some one else, the indemnification shall be reduced in
the first case, and in the second case it shall be appropriated in proportion to such
fault or negligence as provided in paragraphs 1 and 2 of section 2372."
And in article 1304 of the Austrian Code provides that the victim who is partly
changeable with the accident shall stand his damages in proportion to his fault, but
when that proportion is incapable of ascertainment, he shall share the liability equally
with the person principally responsible. The principle of proportional damages
appears to be also adopted in article 51 of the Swiss Code. Even in the United States
in admirality jurisdictions, whose principles are derived from the civil law, common
fault in cases of collision have been disposed of not on the ground of contradictor
negligence, but on that of equal loss, the fault of the one part being offset against that
of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a
decree is entered in favor of the vessel sustaining the greater loss against the other for
the excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U.
S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions.

The Spanish Code of Commerce, article 827, makes each vessel for its own damage
when both are the fault; this provision restricted to a single class of the maritime
accidents, falls for short of a recognition of the principle of contributory negligence as
understood in American Law, with which, indeed, it has little in common. This is a
plain from other articles of the same code; for instance, article 829, referring to
articles 826, 827, and 828, which provides: "In the cases above mentioned the civil
action of the owner against the person liable for the damage is reserved, as well as the
criminal liability which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects
of the faults of the parties, appears to have grown out the original method of trial by
jury, which rendered difficult a nice balancing of responsibilities and which
demanded an inflexible standard as a safeguard against too ready sympathy for the
injured. It was assumed that an exact measure of several concurring faults was
unattainable.
"The reason why, in cases of mutual concurring negligence, neither party can
maintain an action against the other, is, not the wrong of the one is set off against the
wrong of the other; it that the law can not measure how much of the damage suffered
is attributable to the plaintiff's own fault. If he were allowed to recover, it might be
that he would obtain from the other party compensation for his own misconduct."
(Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
"The parties being mutually in fault, there can be no appointment of damages.

The law has no scales to determine in such cases whose wrongdoing weighed most in
the compound that occasioned the mischief." (Railroad vs. Norton, 24 Penn. St. 565,
469.)
Experience with jury trials in negligence cases has brought American courts to
review to relax the vigor of the rule by freely exercising the power of setting aside
verdicts deemed excessive, through the device of granting new trials, unless reduced
damages are stipulated for, amounting to a partial revision of damages by the courts.
It appears to us that the control by the court of the subject matter may be secured on a
moral logical basis and its judgment adjusted with greater nicety to the merits of the
litigants through the practice of offsetting their respective responsibilities. In the civil
law system the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other

countries under the stress and counter stress of novel schemers of legislation, we find
the theory of damages laid down in the judgment the most consistent with the history
and the principals of our law in these Islands and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party

shall be considered immediate causes of the accident. The test is simple. Distinction
must be between the accident and the injury, between the event itself, without which
there could have been no accident, and those acts of the victim not entering into it,
independent of it, but contributing under review was the displacement of the
crosspiece or the failure to replace it. this produced the event giving occasion for
damages — that is, the sinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself. Had the crosspiece
been out of place wholly or partly thorough his act of omission of duty, the last would
have been one of the determining causes of the event or accident, for which he would
have been responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the occurrence,
he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing
the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars,
United States money, we deduct therefrom 2,500 pesos, the amount fairly attributable
to his negligence, and direct judgment to be entered in favor of the plaintiff for the
resulting sum of 2,500 pesos, with cost of both instances, and ten days hereafter let
the case be remanded to the court below for proper action. So ordered.
Arellano, C.J. Torres, and Mapa, JJ., concur.
Separate Opinions

WILLARD, J., with whom concurs CARSON, J., dissenting:
The knowledge which the plaintiff had in regard to the condition of the track is
indicated by his own evidence. He testified, among other things, as follows:
"Q. Now, describe the best you can the character of the track that ran from
the place where you loaded the irons from the barge up to the point
where you unloaded them on the ground. A. — Well, it was pretty bad
character.
xxx xxx xxx
"Q. And you were familiar with the track before that its construction? A. —
Familiar with what?
"Q. Well, you have described it here to the court. A. — Oh, yes; I knew the
condition of the track.
"Q. You knew its conditions as you have described it here at the time you
were working around there? A. — Yes, sir.
xxx xxx xxx
"Q. And while operating it from the side it was necessary for you to step
from board to board on the cross-ties which extended out over the
stringers? — A. Yes, sir.
"Q. And these were very of irregular shape, were they not? — A. They were
in pretty bad condition.
xxx xxx xxx
"Q. And it was not safe to walk along on the outside of these crosspieces? —
A. It was safe if the car stayed on the track. We didn't try to hold the
load on. We tried to hold the car back, keep it from going too fast,
because we knew the track was in bad condition just here, and going
down too fast we could be liable to run off most any time.
"Q. You knew the track was in bad condition when you got hold? — A.
Sure, it was in bad condition.
xxx xxx xxx
"Q. And the accident took place at that point where you believed it to be so

dangerous? A. — Yes, sir.
"Q. But you knew it was dangerous? — A. Why certainly, anybody could
see it; but a workingman had to work in those days or get arrested for a
vag here in Manila."
The court below, while it found that the plaintiff knew in a general way of the
bad condition of the track, found that he was not informed of the exact cause of the
accident, namely, the washing away of the large crosspiece laid upon the ground or
placed upon the posts as the foundation upon which the stripers rested. This finding
of fact to my mind is plainly and manifestly against the weight of the evidence. Ellis,
a witness for the plaintiff, testified that on the morning of the accident he called the
attention of McKenna, the foreman, to the defective condition of the track at his
precise point where the accident happened. His testimony in part is as follows:
"A. I called Mr. McKenna. I showed him the track and told him I didn't
think it was safe working, and that if he didn't fix it he was liable to have
an accident; I told him I thought if he put fish plates on it would it. He
said, you keep on fishing around here for fish plates and you will be
fishing for another job the first thing you know." He says, "You see to
much."
xxx xxx xxx
"Q. Who else was present at the time you had this conversation with Mr.
McKenna? A. — Well, at that conversation as far as I can remember, we
were all walking down the track and I know that McCoy and Mr. Blakes
was along at the time. I remember them two, but we were all walking
down the track in a bunch, but I disremember them.
xxx xxx xxx
"Q. Was that the exact language that you used, that you wanted some fish
plates put on? — A. No, sir: I told him to look at that track. I says get
some fish plates. I says if there was any fish plates we would fix that.
"Q. What did the fish plates have to do with that? A. — It would have
strengthened that joint.
"Q. Why didn't you put the 8 by 8 which was washed crossways in place? —
A. That would have been taken the raising of the track and digging out
along this upright piece and then putting it up again.
The plaintiff himself testified that he was present with Ellis at the time this
conversation was had with McKenna. It thus appears that on the morning in question
the plaintiff and McKenna were standing directly over the place where the accident
happened later in the day. The accident was caused, as the court below found, by the
washing away or displacement of the large 8 by 8 piece of timber. This track was
constructed as all other tracks are, all of it open work, with no floor over the ties, and
of course see the ground and the entire construction of the road, including these large
8 by 8 pieces, the long stringers placed thereon, the ties placed on these stringers, and
the rails placed on the ties. The plaintiff himself must have seen that the 8 by 8 piece
of timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement

was more markedly apparent even than it would appear from the testimony of the
defendant's witnesses. According to the plaintiff's witnesses, the water at high tide
reached the place in question and these 8 by 8 pieces were therefore not laid upon the
ground but were placed upon posts driven into the ground, the height of the posts at
this particular place being, according to the testimony of the plaintiff's witnesses,
from a foot to two feet and a half. As has been said, Ellis testified that the reason why
they did not put the 8 by 8 back in its place was because that would have required the
raising up of the track and digging out along this upright piece and then putting it up
again.
It conclusively appears from the evidence that the plaintiff, before the accident
happened, knew the exact condition of the track and was informed and knew of the
defect which caused the accident. There was no promise on the part of McKenna to
repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the
side of the car where he knew that he would be injured by the falling of the rails from
the car when they reached this point in the track where the two stringers were without
any support of their ends. He either should have refused to work at all or he should
have placed himself behind the car, on the other side of it, or in front of it, drawing it
with a rope. He was guilty of contributory negligence and is not entitled to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a
case like this is no defense under the law in force in these Islands. To this proposition
I can not agree. The liability of the defendant is based in the majority opinion upon
articles 1101 and 1103 of the Civil Code.
In order to impose such liability upon the defendant, it must appear that its
negligence caused the accident. The reason why contradictory negligence on the part
of the plaintiff is a defense in this class of cases is that the negligence of the defendant
did not alone cause the accident. If nothing but that negligence had existed, the
accident would not have happened and, as I understand it, in every case in which
contradictory negligence is a defense it is made so because the negligence of the
plaintiff is the cause of the accident, to this extent, that if the plaintiff had not been
negligent the accident would not have happened, although the defendant was also
negligent. In other words, the negligence of the defendant is not alone sufficient to
cause the accident. It requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory
negligence. The rule of the Roman law was: "Quod quis ex culap sua damnum sentit,
no intelligitur damnum sentire." (Digest, book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
"The just thing is that a man should suffer the damage which comes to him
through his own fault, and that he can not demand reparation therefor from another."
(Law 25, tit. 5, partida 3.)
"And they even said that when a man received an injury through his own acts,
the grievance should be against himself and not against another." (Law 2, tit. 7,
partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that
the plaintiff was himself guilty of negligence, as in the civil judgments of the 4th of
June, 1888, and of the 20th of February, 1887, and in the criminal judgments of the
20th of February 1888, the 90th of March, 1876, and the 6th of October, 1882. These
cases do not throw much light upon the subject. The judgment of the 7th of March,
1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In that case the
supreme court of Spain said:
"According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the injury
thereby caused there exists the relation of cause and effect; but in the injury caused
should not be the result of acts or omissions of a third party, the latter has no
obligation to repair the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was
the negligence of the injured person party himself.
"For the reasons above stated, and the court below having found that the death
of the deceased was due to his own imprudence, and not therefore due to the absence
of a guard at the grade crossing where the accident occurred, it seems clear that court
in acquitting the railroad company of the complaint filed by the widow did not violate

the provisions of the aforesaid article of the Civil Code.
"For the same reason, although the authority granted to the railroad company
to open the grade crossing without a special guard was nullified by the subsequent
promulgation of the railroad police law and the regulations for the execution of the
same, the result would be identical, leaving one of the grounds upon which the
judgment of acquittal is based, to wit, that the accident was caused by the imprudence
of the injured party himself, unaffected."
It appears that the accident in this case took place at a grade crossing where,
according to the claim of the plaintiff, it was the duty of the railroad company to
maintain husband was injured by a train at this crossing, his negligence contributing
to the injury according to the ruling of the court below. This judgment, then, amounts
to a holding that a contributory negligence is a defense according to the law of Spain.
(See also judgment of the 21st of October, 1903, vol. 96 p. 400, Jurisprudencia Civil.)
Although in the Civil Code there is no express provision upon the subject, in
the Code of Commerce there is found a distinct declaration upon it in reference to
damages caused by collision at sea. Article 827 of the Code of Commerce is as
follows:
"If both vessels may be blamed for the collision, each one shall for liable for
his own damages, and both shall jointly responsible for the loss and damages suffered
to their cargoes.
That article is an express recognition of the fact that in collision cases

contributory negligence is a defense,
I do not think that this court is justified in view of the Roman law, of the
provisions of the Partidas, of the judgment of March 7, 1902, of article 827 of the
Code of Commerce, and in the absence of any declaration upon the subject in the
Civil Code, in saying that it was the intention rule announced in the majority opinion,
a rule diametrically opposed to that put in force by the Code of Commerce.
The chief, is not the only, reason stated in the opinion for adopting the rule that
contradictory negligence is not a defense seems to be that such is the holding of the
later French decisions.
As to whether, if any liability existed in this case, it would be necessary in

accordance with the provisions of the Penal Code, or primary, in accordance with the
provision of the Civil Code, I express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the
complaint.

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SECOND DIVISION

[G.R. No. 77679. September 30, 1987.]

VICENTE VERGARA, petitioner, vs. THE COURT OF APPEALS

Hence, this petition for review on certiorari.

It is undisputed that private respondent suffered damages as a result of an act

Furthermore, the petitioner failed to adduce any evidence to overcome the

ACCORDINGLY, the petition is DENIED.

Yap, Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 3

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 4

[G.R. Nos. L-10308 & L-10385-88. April 30, 1957.]

MARIA PAZ S. ALBA, ETC., ET AL., petitioners, vs. DR.

Abad Santos & Pablo for petitioners.

1. WORKMEN'S COMPENSATION LAW; INJURED EMPLOYEE MAY

2. ID.; ID.; INJURED EMPLOYEE ENTITLED TO FULL

This is a petition to reverse the decision of the Commissioner of the

On March 12, 1955, petitioners Gregorio de la Cruz, Pedro C. Bulaong and

WHEREFORE, five separate claims were filed before the Workmen's

Claimants, the Commissioner declared, had elected to hold the Liner

"SEC. 6. Liability of third parties. — In case an employee suffers an

Wherefore, for the purpose of ascertaining and awarding such compensation to

Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia and

Montemayor, J., concurs in the result.

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 5

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 6

[G.R. No. 122039. May 31, 2000.]

VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA

Leo B. Diocos for petitioner.

1. CIVIL LAW; TORTS AND DAMAGES; QUASI-DELICT AND

2. ID.; ID.; ID.; DOCTRINE OF PROXIMATE CAUSE; NOT

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 2

4. ID.; DAMAGES; MORAL DAMAGES; WHEN IT MAY BE

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

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to

On October 9, 1989, Sunga filed a complaint for damages against Calalas,

WHEREFORE, the decision appealed from is hereby REVERSED and

(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.

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 4

The petition has no merit.

Consequently, in quasi-delict, the negligence or fault should be clearly

ARTICLE 1733. Common carriers, from the nature of their business

Such extraordinary diligence in the vigilance over the goods is further

ARTICLE 1755. A common carrier is bound to carry the passengers

ARTICLE 1756. In case of death of or injuries to passengers,

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 6

Second, it is undisputed that petitioner's driver took in more passengers than

Exceeding registered capacity. — No person operating any motor

We find it hard to give serious thought to petitioner's contention that Sunga's

Finally, petitioner challenges the award of moral damages alleging that it is

In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college

Plaintiff-appellant likewise testified that even while she was under

Bellosillo and Buena, JJ., concur.

Quisumbing and De Leon, Jr., JJ., are on leave.

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 8

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 9

Copyright 1994-2016 CD Technologies Asia, Inc. Jurisprudence 1901 to 2015 10

[G.R. No. 118889. March 23, 1998.]