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Torts

Principles Quiz

1. PROXIMATE CAUSE

a.) Bataclan VS Medina

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD
VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.
Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation,
operated by its owner defendant Mariano Medina under a certificate of public convenience,
left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur,
Conrado Saylon. There were about eighteen passengers, including the driver and conductor.
Among the passengers were Juan Bataclan, seated beside and to the right of the driver,
Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan
Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in
the left side of the driver, and a woman named Natalia Villanueva, seated just behind the
four last mentioned. At about 2:00 o'clock that same morning, while the bus was running
within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to
zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some
of the passengers managed to leave the bus the best way they could, others had to be
helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get
out of the overturned bus. Some of the passengers, after they had clambered up to the
road, heard groans and moans from inside the bus, particularly, shouts for help from
Bataclan and Lara, who said they could not get out of the bus. There is nothing in the
evidence to show whether or not the passengers already free from the wreck, including the
driver and the conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were made to the houses
in the neighborhood. After half an hour, came about ten men, one of them carrying a
lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost immediately, a fierce fire
started, burning and all but consuming the bus, including the four passengers trapped inside
it. It would appear that as the bus overturned, gasoline began to leak and escape from the
gasoline tank on the side of the chassis, spreading over and permeating the body of the bus
and the ground under and around it, and that the lighted torch brought by one of the men
who answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were
removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud
Villanueva, in her name and in behalf of her five minor children, brought the present suit to
recover from Mariano Medina compensatory, moral, and exemplary damages and
attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of
Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of
the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the
fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but
the latter endorsed the appeal to us because of the value involved in the claim in the
complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its
passengers and their goods. For purposes of reference, we are reproducing the pertinent
codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all the circumstances of
each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common
carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation
for hire, the Medina Transportation having undertaken to carry Bataclan safely to his
destination, Pasay City. We also agree with the trial court that there was negligence on the
part of the defendant, through his agent, the driver Saylon. There is evidence to show that
at the time of the blow out, the bus was speeding, as testified to by one of the passengers,
and as shown by the fact that according to the testimony of the witnesses, including that of
the defense, from the point where one of the front tires burst up to the canal where the bus
overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur, after
the blow-out, must have applied the brakes in order to stop the bus, but because of the
velocity at which the bus must have been running, its momentum carried it over a distance
of 150 meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only
question is to what degree. The trial court was of the opinion that the proximate cause of
the death of Bataclan was not the overturning of the bus, but rather, the fire that burned
the bus, including himself and his co-passengers who were unable to leave it; that at the
time the fire started, Bataclan, though he must have suffered physical injuries, perhaps
serious, was still alive, and so damages were awarded, not for his death, but for the physical
injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found
in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in
their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal connection
with its immediate predecessor, the final event in the chain immediately effecting the injury
as a natural and probable result of the cause which first acted, under such circumstances
that the person responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that an injury
to some person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger,
merely causing him physical injuries, if through some event, unexpected and extraordinary,
the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the overturning of the vehicle. But in the
present case under the circumstances obtaining in the same, we do not hesitate to hold
that the proximate cause was the overturning of the bus, this for the reason that when the
vehicle turned not only on its side but completely on its back, the leaking of the gasoline
from the tank was not unnatural or unexpected; that the coming of the men with a lighted
torch was in response to the call for help, made not only by the passengers, but most
probably, by the driver and the conductor themselves, and that because it was dark (about
2:30 in the morning), the rescuers had to carry a light with them, and coming as they did
from a rural area where lanterns and flashlights were not available; and what was more
natural than that said rescuers should innocently approach the vehicle to extend the aid
and effect the rescue requested from them. In other words, the coming of the men with a
torch was to be expected and was a natural sequence of the overturning of the bus, the
trapping of some of its passengers and the call for outside help. What is more, the burning
of the bus can also in part be attributed to the negligence of the carrier, through is driver
and its conductor. According to the witness, the driver and the conductor were on the road
walking back and forth. They, or at least, the driver should and must have known that in the
position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that
gasoline when spilled, specially over a large area, can be smelt and directed even from a
distance, and yet neither the driver nor the conductor would appear to have cautioned or
taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said
negligence on the part of the agents of the carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of
the deceased, as well as the other elements entering into a damage award, we are satisfied
that the amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory
compensation, this to include compensatory, moral, and other damages. We also believe
that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by
plaintiffs' attorneys not only in the trial court, but also in the course of the appeal, and not
losing sight of the able briefs prepared by them, the attorney's fees may well be fixed at
EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in the
bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the
evidence, one of the passengers who, because of the injuries suffered by her, was
hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina,
and in the course of his visit, she overheard him speaking to one of his bus inspectors,
telling said inspector to have the tires of the bus changed immediately because they were
already old, and that as a matter of fact, he had been telling the driver to change the said
tires, but that the driver did not follow his instructions. If this be true, it goes to prove that
the driver had not been diligent and had not taken the necessary precautions to insure the
safety of his passengers. Had he changed the tires, specially those in front, with new ones,
as he had been instructed to do, probably, despite his speeding, as we have already stated,
the blow out would not have occurred. All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting in the death of four of his passengers,
physical injuries to others, and the complete loss and destruction of their goods, and yet the
criminal case against him, on motion of the fiscal and with his consent, was provisionally
dismissed, because according to the fiscal, the witnesses on whose testimony he was
banking to support the complaint, either failed or appear or were reluctant to testify. But
the record of the case before us shows the several witnesses, passengers, in that bus,
willingly and unhesitatingly testified in court to the effect of the said driver was negligent. In
the public interest the prosecution of said erring driver should be pursued, this, not only as
a matter of justice, but for the promotion of the safety of passengers on public utility buses.
Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal
of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court
are increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and
from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and
for the attorney's fees, respectively, the decision appealed is from hereby affirmed, with
costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B.
L., Endencia, and Felix, JJ., concur.

b.) Teague VS Fernandez

Republic of the Philippines
SUPREME COURT
Manila

EN BANC



G.R. No. L-29745 June 4, 1973

MERCEDES M. TEAGUE, petitioner,
vs.
ELENA FERNANDEZ, et al., respondent.

Jose W. Diokno for petitioner.

Jose G. Gatchalian for respondents.


MAKALINTAL, J.:

The facts are stated in the decision of the Court of Appeals as follows:

The Realistic Institute, admittedly owned and operated by defendant-appellee Mercedes M.
Teague was a vocational school for hair and beauty culture situated on the second floor of
the Gil-Armi Building, a two-storey, semi-concrete edifice (Exhs. "C", "C-1" to "C-5" and "4")
located at the corner of Quezon Boulevard and Soler Street, Quiapo, Manila. The said
second floor was unpartitioned, had a total area of about 400 square meters, and although
it had only one stairway, of about 1.50 meters in width, it had eight windows, each of which
was provided with two fire-escape ladders (Exh. "4"), and the presence of each of said fire-
exits was indicated on the wall (Exh. "5").

At about four o'clock in the afternoon of October 24, 1955, a fire broke out in a store for
surplus materials located about ten meters away from the institute. Soler Street lay
between that store and the institute. Upon seeing the fire, some of the students in the
Realistic Institute shouted 'Fire! Fire!' and thereafter, a panic ensued. Four instructresses
and six assistant instructress of the Institute were present and they, together with the
registrar, tried to calm down the students, who numbered about 180 at the time, telling
them not to be afraid because the Gil-Armi Building would not get burned as it is made of
concrete, and that the fire was anyway, across the street. They told the students not to rush
out but just to go down the stairway two by two, or to use the fire-escapes. Mrs. Justitia
Prieto, one of the instructresses, took to the microphone so as to convey to the students
the above admonitions more effectively, and she even slapped three students in order to
quiet them down. Miss Frino Meliton, the registrar, whose desk was near the stairway,
stood up and tried with outstretched arms to stop the students from rushing and pushing
their way to the stairs. The panic, however, could not be subdued and the students, with
the exception of the few who made use of fire-escapes kept on rushing and pushing their
way through the stairs, thereby causing stampede therein.

Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was over, four
students, including Lourdes Fernandez, a sister of plaintiffs-appellants, were found dead
and several others injured on account of the stampede.

xxx xxx xxx

The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on
the upper lip, contused abrasions in different parts of the body, internal hemorrhage and
fractures in the second and third right ribs. The cause of death, according to the autopsy
report, was "Shock due to traumatic fractures of the ribs with perinephric hematoma and
lacerations of the conjunctiva of both eyes."

The deceased's five brothers and sisters filed an action for damages against Mercedes M.
Teague as owner and operator of Realistic Institute. The Court of First Instance of Manila
found for the defendant and dismissed the case. The plaintiffs thereupon appealed to the
Court of Appeals, which by a divided vote of 3 to 2 (a special division of five members
having been constituted) rendered a judgment of reversal and sentenced the defendant to
pay damages to the plaintiffs in the sum of P11,000.00, plus interest at the legal rate from
the date the complaint was filed.

The case came up to this Court on a petition for review filed by the defendant below.

The decision of the appellate court declared that the defendant, hereinafter to be referred
to as the petitioner, was negligent and that such negligence was the proximate cause of the
death of Lourdes Fernandez. This finding of negligence is based primarily on the fact that
the provision of Section 491 Of the Revised Ordinances of the City of Manila had not been
complied with in connection with the construction and use of the Gil-Armi building where
the petitioner's vocational school was housed. This provision reads as follows:

Sec. 491. Firepro of partitions, exits and stairways. — ... All buildings and separate sections
of buildings or buildings otherwise known as accessorias having less than three stories,
having one or more persons domiciled therein either temporarily or permanently, and all
public or quasi-public buildings having less than three stories, such as hospitals, sanitarium,
schools, reformatories, places of human detention, assembly halls, clubs, restaurants or
panciterias, and the like, shall be provided with at least two unobstructed stairways of not
less than one meter and twenty centimeters in width and an inclination of not less than
forty degrees from the perpendicular, in case of large buildings more than two stairways
shall likewise be provided when required by the chief of the fire department, said stairways
shall be placed as far apart as possible.

The alleged violation of the ordinance above-quoted consisted in the fact that the second
storey of the Gil-Armi building had only one stairway, 1.5 meters wide, instead of two of at
least 1.2 meters each, although at the time of the fire the owner of the building had a
second stairway under construction.

In ruling that such non-compliance with the City Ordinances was an act of negligence and
that such negligence was the proximate cause of the death of Lourdes Fernandez, reliance is
based on a number of authorities in the American jurisdiction, thus: .

The mere fact of violation of a statute is not sufficient basis for an inference that such
violation was the proximate cause of the injury complained. However, if the very injury has
happened which was intended to be prevented by the statute, it has been held that
violation of the statute will be deemed to be proximate cause of the injury. (65 C.J.S. 1156).

The generally accepted view is that violation of a statutory duty constitutes negligence,
negligence as a matter or law, or, according to the decisions on the question, negligence per
se for the reason that non-observance of what the legislature has prescribed as a suitable
precaution is failure to observe that care which an ordinarily prudent man would observe,
and, when the state regards certain acts as so liable to injure others as to justify their
absolute prohibition, doing the forbidden act is a breach of duty with respect to those who
may be injured thereby; or, as it has been otherwise expressed, when the standard of care
is fixed by law, failure to conform to such standard is negligence, negligence per se or
negligence in and of itself, in the absence of a legal excuse. According to this view it is
immaterial, where a statute has been violated, whether the act or omission constituting
such violation would have been regarded as negligence in the absence of any statute on the
subject or whether there was, as a matter of fact, any reason to anticipate that injury would
result from such violation. .... (65 C.J.S. pp. 623-628).

But the existence of an ordinance changes the situation. If a driver causes an accident by
exceeding the speed limit, for example, do not inquire whether his prohibited conduct was
unreasonably dangerous. It is enough that it was prohibited. Violation of an ordinance
intended to promote safety is negligence. If by creating the hazard which the ordinance was
intended to avoid it brings about the harm which the ordinance was intended to prevent, it
is a legal cause of the harm. This comes only to saying that in such circumstances the law
has no reason to ignore the causal relation which obviously exists in fact. The law has
excellent reason to recognize it, since it is the very relation which the makers of the
ordinance anticipated. This court has applied these principles to speed limits and other
regulations of the manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

... However, the fact that other happenings causing or contributing toward an injury
intervened between the violation of a statute or ordinance and the injury does not
necessarily make the result so remote that no action can be maintained. The test is to be
found not in the number of intervening events or agents, but in their character and in the
natural and probable connection between the wrong done and the injurious consequence.
The general principle is that the violation of a statute or ordinance is not rendered remote
as the cause of an injury by the intervention of another agency if the occurrence of the
accident, in the manner in which it happened, was the very thing which the statute or
ordinance was intended to Prevent. (38 Am Jur 841).

The petitioner has raised a number of issues. The first is that Section 491 of the Revised
Ordinances of the City of Manila refers to public buildings and hence did not apply to the
Gil-Armi building which was of private ownership. It will be noted from the text of the
ordinance, however, that it is not ownership which determines the character of buildings
subject to its requirements, but rather the use or the purpose for which a particular building
is utilized. Thus the same may be privately owned, but if it is devoted to any one of the
purposes mentioned in the ordinance — for instance as a school, which the Realistic
Institute precisely was — then the building is within the coverage of the ordinance. Indeed
the requirement that such a building should have two (2) separate stairways instead of only
one (1) has no relevance or reasonable relation to the fact of ownership, but does have
such relation to the use or purpose for which the building is devoted.

It is next contended that the obligation to comply with the ordinance devolved upon the
owners of the building and therefore it is they and not the petitioner herein, who is a mere
lessee, who should be liable for the violation. The contention ignores the fact that it was the
use of the building for school purposes which brought the same within the coverage of the
ordinance; and it was the petitioner and not the owners who was responsible for such use.

The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to
comply with the requirement of the ordinance was the proximate cause of the death of
Lourdes Fernandez. The case of Villanueva Vda. de Bataclan, et al. vs. Medina, G. R. No. L-
10126, October 22, 1957, is cited in support of the contention that such failure was not the
proximate cause. It is there stated by this Court:

The proximate legal cause is that acting first and producing the injury, either immediately or
by settling other events in motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate predecessor, the final event in the
chain immediately affecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the first event should,
as an ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result therefrom.

Having in view the decision just quoted, the petitioner relates the chain of events that
resulted in the death of Lourdes Fernandez as follows: (1) violation of ordinance; (2) fire at a
neighboring place; (3) shouts of "Fire!, Fire!"; (4) panic in the Institute; (5) stampede; and
(6) injuries and death.

As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at
all, and cannot be the basis of liability since there intervened a number of independent
causes which produced the injury complained of. A statement of the doctrine relied upon is
found in Manila Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court, citing
Corpus Juris said:

A prior and remote cause cannot be made the basis of an action if such remote cause did
nothing more than furnish the condition or give rise to the occasion by which the injury was
made possible, if there intervened between such prior or remote cause and the injury a
distinct, successive unrelated, and efficient cause of the injury, even though such injury
would not have happened but for such condition or occasion. If no danger existed in the
condition except because of the independent cause, such condition was not the proximate
cause. And if an independent negligent act or defective condition sets into operation the
circumstances which result in injury because of the prior defective condition, such
subsequent act or condition is the proximate cause. (45 C.J. p. 931.)

According to the petitioner "the events of fire, panic and stampede were independent
causes with no causal connection at all with the violation of the ordinance." The weakness
in the argument springs from a faulty juxtaposition of the events which formed a chain and
resulted in the injury. It is true that the petitioner's non-compliance with the ordinance in
question was ahead of and prior to the other events in point of time, in the sense that it
was coetaneous with its occupancy of the building. But the violation was a continuing one,
since the ordinance was a measure of safety designed to prevent a specific situation which
would pose a danger to the occupants of the building. That situation was undue
overcrowding in case it should become necessary to evacuate the building, which, it could
be reasonably foreseen, was bound to happen under emergency conditions if there was
only one stairway available. It is true that in this particular case there would have been no
overcrowding in the single stairway if there had not been a fire in the neighborhood which
caused the students to panic and rush headlong for the stairs in order to go down. But it
was precisely such contingencies or event that the authors of the ordinance had in mind, for
under normal conditions one stairway would be adequate for the occupants of the building.
Thus, as stated in 38 American Jurisprudence, page 841: "The general principle is that the
violation of a statute or ordinance is not rendered remote as the cause of an injury by the
intervention of another agency if the occurrence of the accident, in the manner in which it
happened, was the very thing which the statute or ordinance was intended to prevent." To
consider the violation of the ordinance as the proximate cause of the injury does not
portray the situation in its true perspective; it would be more accurate to say that the
overcrowding at the stairway was the proximate cause and that it was precisely what the
ordinance intended to prevent by requiring that there be two stairways instead of only one.
Under the doctrine of the cases cited by the respondents, the principle of proximate cause
applies to such violation.

A procedural point mentioned by the petitioner is that the complaint did not specifically
allege that the ordinance in question had been violated. The violation, however, as an act of
negligence which gave rise to liability, was sufficiently comprehended within paragraph 7 of
the complaint, which reads: .

Par. 7. That the death of Lourdes Fernandez was due to the gross negligence of the
defendant who failed to exercise due care and diligence for the safety of its students in not
providing the building with adequate fire exits and in not practicing fire drill exercises to
avoid the stampede, aside from the fact that the defendant did not have a permit to use the
building as a school-house.

The decision appealed from is affirmed, with costs.

Zaldivar, Fernando, Teehankee, Makasiar, Antonio and Esguerra, JJ., concur.

Castro and Barredo, JJ., reserve their votes.

c.) Sabido VS Custodio

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21512 August 31, 1966

PROSPERO SABIDO and ASER LAGUNDA, petitioners,
vs.
CARLOS CUSTODIO, BELEN MAKABUHAY CUSTODIO and THE HONORABLE COURT OF
APPEALS, respondents.

Sabido, Sabido and Associates for petitioners.
Ernesto S. Tengco for respondents.

CONCEPCION, C.J.:

Prospero Sabido and Aser Lagunda seek the review by certiorari of a decision of the Court of
Appeals, affirming that of the Court of First Instance of Laguna, sentencing the Laguna-
Tayabas Bus Co., Nicasio Mudales, and herein petitioners. Prospero Sabido and Aser
Lagunda, to jointly and severally indemnify Belen Makabuhay Custodio and her son,
Agripino Custodio Jr., in the sum of P6,000 and to pay the costs of the suit.

The facts are set forth in the decision of the Court of Appeals from which we quote:

Upon a careful study and judicious examining of the evidence on record, we are inclined to
concur in the findings made by the trial court. Here is how the Court a quo analyzed the
facts of this case:

"In Barrio Halang, Municipality of Lumban, Province of Laguna, two trucks, one driven by
Nicasio Mudales and belonging to Laguna-Tayabas Bus Company, and the other driven by
Aser Lagunda and owned by Prospero Sabido, going in opposite directions met each other in
a road curve. Agripino Custodia a passenger of LTB bus, who was hanging on the left side as
truck was full of passengers was sideswiped by the track driven by Aser Lagunda. As a result,
Agripino Custodio was injured and died (Exhibit A).

"It appears clear from the evidence that Agripino Custodio was hanging on the left side of
the LTB bus. Otherwise, were he sitting inside the truck, he could not have been struck by
the six by six truck driven by Aser Lagunda. This fact alone, of allowing Agripino Custodio to
hang on the side of the truck, makes the defendant Laguna Tayabas Bus Company liable for
damages. For certainly its employees, who are the driver and conductor were negligent.
They should not have allowed Agripino Custodio to ride their truck in that manner.

"To avoid any liability, Aser Lagunda and Prospero Sabido throw all the blame on Nicasio
Mudales. From the testimony, however, of Belen Makabuhay, Agripino Custodio's widow,
we can deduce that Aser Lagunda was equally negligent as Nicasio Mudales. Belen testified
that the 6 x 6 truck was running fast when it met the LTB Bus. And Aser Lagunda had time
and opportunity to avoid the mishap if he had been sufficiently careful and cautious
because the two trucks never collided with each other. By simply swerving to the right side
of the road, the 6 x 6 truck could have avoided hitting Agripino Custodio. It is incredible that
the LTB was running on the middle of the road when passing a curve. He knows it is
dangerous to do so. We are rather of the belief that both trucks did not keep close to the
right side of the road so they sideswiped each other and thus Agripino Custodio was injured
and died. In other words, both drivers must have drive in their trucks not in the proper lane
and are, therefore, both reckless and negligent.

"We might state by way of additional observations that the sideswiping of the deceased and
his two fellow passengers took place on broad daylight at about 9:30 in the morning of June
9, 1955 when the LTB bus with full load to passengers was negotiating a sharp curve of a
bumpy and sliding downward a slope, whereas the six by six truck was climbing up with no
cargoes or passengers on board but for three helpers, owner Sabido and driver Lagunda
(tsn. 308-309, Mendoza). Under the above-stated condition, there exists strong persuasion
to accept what Belen Makabuhay and Sofia Mesina, LTB passengers, had testified to the
effect that the 6 x 6 cargo truck was running at a fast rate of speed (tsn. 15, 74, 175
Mendoza). From the lips of no less than driver Lagunda himself come the testimonial
admission that the presence of three hanging passengers located at the left side of the bus
was noted when his vehicle was still at a distance of 5 or 7 meters from the bus, and yet
despite the existence of a shallow canal on the right side of the road which he could pass
over with ease, Lagunda did not care to exercise prudence to avert the accident simply
because to use his own language the canal "is not a passage of trucks."

Based upon these facts, the Court of First Instance of Laguna and the Court of Appeals
concluded that the Laguna-Tayabas Bus Co. — hereinafter referred to as the carrier — and
its driver Nicasio Mudales (none of whom has appealed), had violated the contract of
carriage with Agripino Custodio, whereas petitioners Sabido and Lagunda were guilty of a
quasi delict, by reason of which all of them were held solidarity liable in the manner above
indicated.

Petitioners now maintain: (1) that the death of Agripino Custodio was due exclusively to the
negligence of the carrier and its driver; (2) that petitioners were not guilty of negligence in
connection with the matter under consideration; (3) that petitioners cannot be held
solidarily liable with the carrier and its driver; and (4) that the complaint against petitioners
herein should be dismissed.

With respect to the first two (2) points, which are interrelated, it is urged that the carrier
and its driver were clearly guilty of negligence for having allowed Agripino Custodio to ride
on the running board of the bus, in violation of Section 42 of Act No. 3992, and that this
negligence was the proximate cause of Agripino's death. It should be noted, however, that
the lower court had, likewise, found the petitioners guilty of contributory negligence, which
was as much a proximate cause of the accident as the carrier's negligence, for petitioners'
truck was running at a considerable speed, despite the fact that it was negotiating a sharp
curve, and, instead of being close to its right side of the road, said truck was driven on its
middle portion and so near the passenger bus coming from the opposite direction as to
sideswipe a passenger riding on its running board.1äwphï1.ñët

The views of the Court of Appeals on the speed of the truck and its location at the time of
the accident are in the nature of findings of fact, which we cannot disturb in a petition for
review by certiorari, such as the one at bar. At any rate, the correctness of said findings is
borne out by the very testimony of petitioner Lagunda to the effect that he saw the
passengers riding on the running board of the bus while the same was still five (5) or seven
(7) meters away from the truck driven by him. Indeed, the distance between the two (2)
vehicles was such that he could have avoided sideswiping said passengers if his truck were
not running at a great speed.

Although the negligence of the carrier and its driver is independent, in its execution, of the
negligence of the truck driver and its owner, both acts of negligence are the proximate
cause of the death of Agripino Custodio. In fact, the negligence of the first two (2) would
not have produced this result without the negligence of petitioners' herein. What is more,
petitioners' negligence was the last, in point of time, for Custodio was on the running board
of the carrier's bus sometime before petitioners' truck came from the opposite direction, so
that, in this sense, petitioners' truck had the last clear chance.

Petitioners contend that they should not be held solidarily liable with the carrier and its
driver, because the latter's liability arises from a breach of contract, whereas that of the
former springs from a quasi delict. The rule is, however, that

According to the great weight of authority, where the concurrent or successive negligent
acts or omission of two or more persons, although acting independently of each other, are,
in combination, the direct and proximate cause of a single injury to a third person, and it is
impossible to determine in what proportion each contributed to the injury, either is
responsible for the whole injury, even though his act alone might not have caused the
entire injury, or the same damage might have resulted from the acts of the other tort-feasor
... . (38 Am. Jur. 946, 947.)

Wherefore, the decision appealed from is hereby affirmed, with costs against the
petitioners herein. It is so ordered.

Reyes, J.B.L., Barrera, Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur.
Regala, J., is on leave.
2. DAMNUM ABSQUE INJURIA
a.) Dunno hahaha
b.) Custodio VS CA
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 116100 February 9, 1996

SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA
SANTOS, petitioners,
vs.
COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA and REGIONAL TRIAL COURT OF PASIG,
METRO MANILA, BRANCH 181, respondents.

D E C I S I O N

REGALADO, J.:

This petition for review on certiorari assails the decision of respondent Court of Appeals in
CA-G.R. CV No. 29115, promulgated on November 10, 1993, which affirmed with
modification the decision of the trial court, as well as its resolution dated July 8, 1994
denying petitioner's motion for reconsideration.1

On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was
filed by Pacifico Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato,
Lito Santos and Maria Cristina C. Santos before the Regional Trial Court of Pasig and
assigned to Branch 22 thereof.2

The generative facts of the case, as synthesized by the trial court and adopted by the Court
of Appeals, are as follows:

Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during
the pendency of this case and was substituted by Ofelia Mabasa, his surviving spouse [and
children].

The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at
Interior P. Burgos St., Palingon, Tipas, Tagig, Metro Manila. The plaintiff was able to acquire
said property through a contract of sale with spouses Mamerto Rayos and Teodora
Quintero as vendors last September 1981. Said property may be described to be
surrounded by other immovables pertaining to defendants herein. Taking P. Burgos Street
as the point of reference, on the left side, going to plaintiff's property, the row of houses
will be as follows: That of defendants Cristino and Brigido Custodio, then that of Lito and
Maria Cristina Santos and then that of Ofelia Mabasa. On the right side (is) that of
defendant Rosalina Morato and then a Septic Tank (Exhibit "D"). As an access to P. Burgos
Street from plaintiff's property, there are two possible passageways. The first passageway is
approximately one meter wide and is about 20 meters distan(t) from Mabasa's residence to
P. Burgos Street. Such path is passing in between the previously mentioned row of houses.
The second passageway is about 3 meters in width and length from plaintiff Mabasa's
residence to P. Burgos Street; it is about 26 meters. In passing thru said passageway, a less
than a meter wide path through the septic tank and with 5-6 meters in length, has to be
traversed.

When said property was purchased by Mabasa, there were tenants occupying the remises
and who were acknowledged by plaintiff Mabasa as tenants. However, sometime in
February, 1982, one of said tenants vacated the apartment and when plaintiff Mabasa went
to see the premises, he saw that there had been built an adobe fence in the first
passageway making it narrower in width. Said adobe fence was first constructed by
defendants Santoses along their property which is also along the first passageway.
Defendant Morato constructed her adobe fence and even extended said fence in such a
way that the entire passageway was enclosed. (Exhibit "1-Santoses and Custodios, Exh. "D"
for plaintiff, Exhs. "1-C", "1-D" and "1-E") And it was then that the remaining tenants of said
apartment vacated the area. Defendant Ma. Cristina Santos testified that she constructed
said fence because there was an incident when her daughter was dragged by a bicycle
pedalled by a son of one of the tenants in said apartment along the first passageway. She
also mentioned some other inconveniences of having (at) the front of her house a pathway
such as when some of the tenants were drunk and would bang their doors and windows.
Some of their footwear were even lost. . . .3 (Emphasis in original text; corrections in
parentheses supplied)

On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:

Accordingly, judgment is hereby rendered as follows:

1) Ordering defendants Custodios and Santoses to give plaintiff permanent access ingress
and egress, to the public street;

2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight
Thousand Pesos (P8,000) as indemnity for the permanent use of the passageway.

The parties to shoulder their respective litigation expenses.4

Not satisfied therewith, therein plaintiff represented by his heirs, herein private
respondents, went to the Court of Appeals raising the sole issue of whether or not the
lower court erred in not awarding damages in their favor. On November 10, 1993, as earlier
stated, the Court of Appeals rendered its decision affirming the judgment of the trial court
with modification, the decretal portion of which disposes as follows:

WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH
MODIFICATION only insofar as the herein grant of damages to plaintiffs-appellants. The
Court hereby orders defendants-appellees to pay plaintiffs-appellants the sum of Sixty Five
Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand (P30,000) Pesos as Moral
Damages, and Ten Thousand (P10,000) Pesos as Exemplary Damages. The rest of the
appealed decision is affirmed to all respects.5

On July 8, 1994, the Court of Appeals denied petitioner's motion for reconsideration.6
Petitioners then took the present recourse to us, raising two issues, namely, whether or not
the grant of right of way to herein private respondents is proper, and whether or not the
award of damages is in order.

With respect to the first issue, herein petitioners are already barred from raising the same.
Petitioners did not appeal from the decision of the court a quo granting private respondents
the right of way, hence they are presumed to be satisfied with the adjudication therein.
With the finality of the judgment of the trial court as to petitioners, the issue of propriety of
the grant of right of way has already been laid to rest.

For failure to appeal the decision of the trial court to the Court of Appeals, petitioners
cannot obtain any affirmative relief other than those granted in the decision of the trial
court. That decision of the court below has become final as against them and can no longer
be reviewed, much less reversed, by this Court. The rule in this jurisdiction is that whenever
an appeal is taken in a civil case, an appellee who has not himself appealed may not obtain
from the appellate court any affirmative relief other than what was granted in the decision
of the lower court. The appellee can only advance any argument that he may deem
necessary to defeat the appellant's claim or to uphold the decision that is being disputed,
and he can assign errors in his brief if such is required to strengthen the views expressed by
the court a quo. These assigned errors, in turn, may be considered by the appellate court
solely to maintain the appealed decision on other grounds, but not for the purpose of
reversing or modifying the judgment in the appellee's favor and giving him other affirmative
reliefs.7

However, with respect to the second issue, we agree with petitioners that the Court of
Appeals erred in awarding damages in favor of private respondents. The award of damages
has no substantial legal basis. A reading of the decision of the Court of Appeals will show
that the award of damages was based solely on the fact that the original plaintiff, Pacifico
Mabasa, incurred losses in the form of unrealized rentals when the tenants vacated the
leased premises by reason of the closure of the passageway.

However, the mere fact that the plaintiff suffered losses does not give rise to a right to
recover damages. To warrant the recovery of damages, there must be both a right of action
for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff
therefrom. Wrong without damage, or damage without wrong, does not constitute a cause
of action, since damages are merely part of the remedy allowed for the injury caused by a
breach or wrong.8

There is a material distinction between damages and injury. Injury is the illegal invasion of a
legal right; damage is the loss, hurt, or harm which results from the injury; and damages are
the recompense or compensation awarded for the damage suffered. Thus, there can be
damage without injury in those instances in which the loss or harm was not the result of a
violation of a legal duty. These situations are often called damnum absque injuria.9

In order that a plaintiff may maintain an action for the injuries of which he complains, he
must establish that such injuries resulted from a breach of duty which the defendant owed
to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person
causing it.10 The underlying basis for the award of tort damages is the premise that an
individual was injured in contemplation of law. Thus, there must first be the breach of some
duty and the imposition of liability for that breach before damages may be awarded; it is
not sufficient to state that there should be tort liability merely because the plaintiff suffered
some pain and suffering.11

Many accidents occur and many injuries are inflicted by acts or omissions which cause
damage or loss to another but which violate no legal duty to such other person, and
consequently create no cause of action in his favor. In such cases, the consequences must
be borne by the injured person alone. The law affords no remedy for damages resulting
from an act which does not amount to a legal injury or wrong.12

In other words, in order that the law will give redress for an act causing damage, that act
must be not only hurtful, but wrongful. There must be damnum et injuria.13 If, as may
happen in many cases, a person sustains actual damage, that is, harm or loss to his person
or property, without sustaining any legal injury, that is, an act or omission which the law
does not deem an injury, the damage is regarded as damnum absque injuria.14

In the case at bar, although there was damage, there was no legal injury. Contrary to the
claim of private respondents, petitioners could not be said to have violated the principle of
abuse of right. In order that the principle of abuse of right provided in Article 21 of the Civil
Code can be applied, it is essential that the following requisites concur: (1) The defendant
should have acted in a manner that is contrary to morals, good customs or public policy; (2)
The acts should be willful; and (3) There was damage or injury to the plaintiff.15

The act of petitioners in constructing a fence within their lot is a valid exercise of their right
as owners, hence not contrary to morals, good customs or public policy. The law recognizes
in the owner the right to enjoy and dispose of a thing, without other limitations than those
established by law.16 It is within the right of petitioners, as owners, to enclose and fence
their property. Article 430 of the Civil Code provides that "(e)very owner may enclose or
fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other
means without detriment to servitudes constituted thereon."

At the time of the construction of the fence, the lot was not subject to any servitudes. There
was no easement of way existing in favor of private respondents, either by law or by
contract. The fact that private respondents had no existing right over the said passageway is
confirmed by the very decision of the trial court granting a compulsory right of way in their
favor after payment of just compensation. It was only that decision which gave private
respondents the right to use the said passageway after payment of the compensation and
imposed a corresponding duty on petitioners not to interfere in the exercise of said right.

Hence, prior to said decision, petitioners had an absolute right over their property and their
act of fencing and enclosing the same was an act which they may lawfully perform in the
employment and exercise of said right. To repeat, whatever injury or damage may have
been sustained by private respondents by reason of the rightful use of the said land by
petitioners is damnum absque injuria.17

A person has a right to the natural use and enjoyment of his own property, according to his
pleasure, for all the purposes to which such property is usually applied. As a general rule,
therefore, there is no cause of action for acts done by one person upon his own property in
a lawful and proper manner, although such acts incidentally cause damage or an
unavoidable loss to another, as such damage or loss is damnum absque injuria. 18 When
the owner of property makes use thereof in the general and ordinary manner in which the
property is used, such as fencing or enclosing the same as in this case, nobody can complain
of having been injured, because the incovenience arising from said use can be considered as
a mere consequence of community life. 19

The proper exercise of a lawful right cannot constitute a legal wrong for which an action will
lie, 20 although the act may result in damage to another, for no legal right has been
invaded. 21 One may use any lawful means to accomplish a lawful purpose and though the
means adopted may cause damage to another, no cause of action arises in the latter's
favor. An injury or damage occasioned thereby is damnum absque injuria. The courts can
give no redress for hardship to an individual resulting from action reasonably calculated to
achieve a lawful means. 22

WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of
respondent Court of Appeals is hereby REVERSED and SET ASIDE and the judgment of the
trial court is correspondingly REINSTATED.

Romero and Puno, JJ., concur.
Mendoza, J., took no part.



3. ASSUMPTION OF RISK
a.) Romulo Abrogar VS CA
March 15, 2017

G.R. No. 164749

ROMULO ABROGAR and ERLINDA ABROGAR, Petitioners
vs
COSMOS BOTTLING COMPANY and INTERGAMES, INC., Respondents

D E C I S I O N

BERSAMIN, J.:

This case involves a claim for damages arising from the negligence causing the death of a
participant in an organized marathon bumped by a passenger jeepney on the route of the
race. The issues revolve on whether the organizer and the sponsor of the marathon were
guilty of negligence, and, if so, was their negligence the proximate cause of the death of the
participant; on whether the negligence of the driver of the passenger jeepney was an
efficient intervening cause; on whether the doctrine of assumption of risk was applicable to
the fatality; and on whether the heirs of the fatality can recover damages for loss of earning
capacity of the latter who, being then a minor, had no gainful employment.

The Case

By this appeal, the parents of the late Rommel Abrogar (Rommel), a marathon runner, seek
the review and reversal of the decision promulgated on March l 0, 2004,1 whereby the
Court of Appeals (CA) reversed and set aside the judgment rendered in their favor on May
10, 1991 by the Regional Trial Court (RTC), Branch 83, in Quezon City2 finding and declaring
respondents Cosmos Bottling Company (Cosmos), a domestic soft-drinks company whose
products included Pop Cola, and Intergames, Inc. (Intergames), also a domestic corporation
organizing and supervising the 1st Pop Cola Junior Marathon" held on June 15, 1980 in
Quezon City, solidarily liable for damages arising from the untimely death of Rommel, then
a minor 18 years of age,3 after being bumped by a recklessly driven passenger jeepney
along the route of the marathon.

Antecedents

The CA narrated the antecedents in the assailed judgment,4 viz.:

[T]o promote the sales of "Pop Cola", defendant Cosmos, jointly with Intergames, organized
an endurance running contest billed as the "1st Pop Cola Junior Marathon" scheduled to be
held on June 15, 1980. The organizers plotted a 10-kilometer course starting from the
premises of the Interim Batasang Pambansa (IBP for brevity), through public roads and
streets, to end at the Quezon Memorial Circle. Plaintiffs' son Rommel applied with the
defendants to be allowed to participate in the contest and after complying with defendants'
requirements, his application was accepted and he was given an official number.
Consequently, on June 15, 1980 at the designated time of the marathon, Rommel joined the
other participants and ran the course plotted by the defendants. As it turned out, the
plaintiffs' (sic) further alleged, the defendants failed to provide adequate safety and
precautionary measures and to exercise the diligence required of them by the nature of
their undertaking, in that they failed to insulate and protect the participants of the
marathon from the vehicular and other dangers along the marathon route. Rommel was
bumped by a jeepney that was then running along the route of the marathon on Don
Mariano Marcos A venue (DMMA for brevity), and in spite of medical treatment given to
him at the Ospital ng Bagong Lipunan, he died later that same day due to severe head
injuries.

On October 28, 1980, the petitioners sued the respondents in the then Court of First
Instance of Rizal (Quezon City) to recover various damages for the untimely death of
Rommel (i.e., actual and compensatory damages, loss of earning capacity, moral damages,
exemplary damages, attorney's fees and expenses oflitigation).5

Cosmos denied liability, insisting that it had not been the organizer of the marathon, but
only its sponsor; that its participation had been limited to providing financial assistance to
Intergames;6 that the financial assistance it had extended to Intergames, the sole organizer
of the marathon, had been in answer to the Government's call to the private sector to help
promote sports development and physical fitness;7 that the petitioners had no cause of
action against it because there was no privity of contract between the participants in the
marathon and Cosmos; and that it had nothing to do with the organization, operation and
running of the event.8

As counterclaim, Cosmos sought attorney's fees and expenses of litigation from the
petitioners for their being unwarrantedly included as a defendant in the case. It averred a
cross-claim against Intergames, stating that the latter had guaranteed to hold Cosmos
"completely free and harmless from any claim or action for liability for any injuries or bodily
harm which may be sustained by any of the entries in the '1st Pop Cola Junior Marathon' or
for any damage to the property or properties of third parties, which may likewise arise in
the course of the race."9 Thus, Cosmos sought to hold Intergames solely liable should the
claim of the petitioners prosper.10

On its part, Intergames asserted that Rommel's death had been an accident exclusively
caused by the negligence of the jeepney driver; that it was not responsible for the accident;
that as the marathon organizer, it did not assume the responsibilities of an insurer of the
safety of the participants; that it nevertheless caused the participants to be covered with
accident insurance, but the petitioners refused to accept the proceeds thereof;11 that there
could be no cause of action against it because the acceptance and approval of Rommel's
application to join the marathon had been conditioned on his waiver of all rights and causes
of action arising from his participation in the marathon;12 that it exercised due diligence in
the conduct of the race that the circumstances called for and was appropriate, it having
availed of all its know-how and expertise, including the adoption and implementation of all
known and possible safety and precautionary measures in order to protect the participants
from injuries arising from vehicular and other forms of accidents;13 and, accordingly, the
complaint should be dismissed.

In their reply and answer to counterclaim, the petitioners averred that contrary to its
claims, Intergames did not provide adequate measures for the safety and protection of the
race participants, considering that motor vehicles were traversing the race route and the
participants were made to run along the flow of traffic, instead of against it; that
Intergames did not provide adequate traffic marshals to secure the safety and protection of
the participants;14 that Intergames could not limit its liability on the basis of the accident
insurance policies it had secured to cover the race participants; that the waiver signed by
Rommel could not be a basis for denying liability because the same was null and void for
being contrary to law, morals, customs and public policy;15 that their complaint sufficiently
stated a cause of action because in no way could they be held liable for attorney's fees,
litigation expenses or any other relief due to their having abided by the law and having
acted honestly, fairly, in good faith by according to Intergames its due, as demanded by the
facts and circumstances.16

At the pre-trial held on April 12, 1981, the parties agreed that the principal issue was
whether or not Cosmos and lntergames were liable for the death of Rommel because of
negligence in conducting the marathon.17

Judgment of the RTC

In its decision dated May 10, 1991,18 the RTC ruled as follows:

WHEREFORE, judgment is hereby rendered in favor of plaintiffs-spouses Romulo Abrogar
and Erlinda Abrogar and against defendants Cosmos Bottling Company, Inc. and Intergames,
Inc., ordering both defendants, jointly and severally, to pay and deliver to the plaintiffs the
amounts of Twenty Eight Thousand Sixty One Pesos and Sixty Three Centavos (₱28,061.63)
as actual damages; One Hundred Thousand Pesos (₱100,000.00) as moral damages; Fifty
Thousand Pesos (₱50,000.00) as exemplary damages and Ten Percent (10%) of the total
amount of One Hundred Seventy Eight Thousand Sixty One Pesos and Sixty Three Centavos
(₱178,061,63) or Seventeen Thousand Eight Hundred Six Pesos and Sixteen Centavos
(₱17,806.16) as attorney's fees.

On the cross-claim of defendant Cosmos Bottling Company, Inc., defendant Intergames, Inc,
is hereby ordered to reimburse to the former any and all amounts which may be recovered
by the plaintiffs from it by virtue of this Decision.

SO ORDERED.

The RTC observed that the safeguards allegedly instituted by Intergames in conducting the
marathon had fallen short of the yardstick to satisfy the requirements of due diligence as
called for by and appropriate under the circumstances; that the accident had happened
because of inadequate preparation and Intergames' failure to exercise due diligence;19 that
the respondents could not be excused from liability by hiding behind the waiver executed
by Rommel and the permission given to him by his parents because the waiver could only
be effective for risks inherent in the marathon, such a:s stumbling, heat stroke, heart attack
during the race, severe exhaustion and similar occurrences;20 that the liability of the
respondents towards the participants and third persons was solidary, because Cosmos, the
sponsor of the event, had been the principal mover of the event, and, as such, had derived
benefits from the marathon that in turn had carried responsibilities towards the
participants and the public; that the respondents' agreement to free Cosmos from any
liability had been an agreement binding only between them, and did not bind third persons;
and that Cosmos had a cause of action against Intergames for whatever could be recovered
by the petitioners from Cosmos.21

Decision of the CA

All the parties appealed to the CA.

The petitioners contended that the RTC erred in not awarding damages for loss of earning
capacity on the part of Rommel for the reason that such damages were not recoverable due
to Rommel not yet having finished his schooling; and that it would be premature to award
such damages upon the assumption that he would finish college and be gainfully
employed.22

On their part, Cosmos and Intergames separately raised essentially similar errors on the
part of the RTC, to wit: (1) in holding them liable for the death of Rommel; (2) in finding
them negligent in conducting the marathon; (3) in holding that Rommel and his parents did
not assume the risks of the marathon; (4) in not holding that the sole and proximate cause
of the death of Rommel was the negligence of the jeepney driver; and (5) in making them
liable, jointly and solidarily, for damages, attorney's fees and expenses of litigation.23

The CA reduced the issues to four, namely:

1. Whether or not appellant Intergames was negligent in its conduct of the "1st Pop Cola
Junior Marathon" held on June 15, 1980 and if so, whether its negligence was the proximate
cause of the death of Rommel Abrogar.

2. Whether or not appellant Cosmos can be held jointly and solidarily liable with appellant
Intergames for the death of Rommel Abrogar, assuming that appellant Intergames is found
to have been negligent in the conduct of the Pop Cola marathon and such negligence was
the proximate cause of the death of Rommel Abrogar.

3. Whether or not the appellants Abrogar are entitled to be compensated for the "loss of
earning capacity" of their son Rommel.

4. Whether or not the appellants Abrogar are entitled to the actual, moral, and exemplary
damages granted to them by the Trial Court.24

In its assailed judgment promulgated on March 10, 2004,25 the CA ruled as follows:

As to the first issue, this Court finds that appellant Intergames was not negligent in
organizing the said marathon.

Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct to human affairs, would do, or doing
something which a prudent and reasonable man would not do.

The whole theory of negligence presuppose some uniform standard of behavior which must
be an external and objective one, rather than the individual judgment good or bad, of the
particular actor; it must be, as far as possible, the same for all persons; and at the same
time make proper allowance for the risk apparent to the actor for his capacity to meet it,
and for the circumstances under which he must act.

The question as to what would constitute the conduct of a prudent man in a given situation
must of course be always determined in the light of human experience and of the acts
involved in the particular case.

In the case at bar, the trial court erred in finding that the appellant Intergames failed to
satisfy the requirements of due diligence in the conduct of the race.

The trial court in its decision said that the accident in question could have been avoided if
the route of the marathon was blocked off from the regular traffic, instead of allowing the
runners to run together with the flow of traffic. Thus, the said court considered the
appellant Intergames at fault for proceeding with the marathon despite the fact that the
Northern Police District, MPF, Quezon City did not allow the road to be blocked off from
traffic.

This Court finds that the standard of conduct used by the trial court is not the ordinary
conduct of a prudent man in such a given situation. According to the said court, the only
way to conduct a safe road race is to block off the traffic for the duration of the event and
direct the cars and public utilities to take alternative routes in the meantime that the
marathon event is being held. Such standard is too high and is even inapplicable in the case
at bar because, there is no alternative route from IBP to Don Mariano Marcos to Quezon
City Hall.

The Civil Code provides that if the law or contract does not state the diligence which is to be
observed in the performance of an obligation that which is expected of a good father of the
family shall only be required. Accordingly, appellant Intergames is only bound to exercise
the degree of care that would be exercised by an ordinarily careful and prudent man in the
same position and circumstances and not that of the cautious man of more than average
prudence. Hence, appellant Intergames is only expected to observe ordinary diligence and
not extraordinary diligence.

In this case, the marathon was allowed by the Northern Police District, MPF, Quezon City on
the condition that the road should not be blocked off from traffic. Appellant Intergames had
no choice. It had to comply with it or else the said marathon would not be allowed at all.

The trial court erred in contending that appellant Intergames should have looked for
alternative places in Metro Manila given the condition set by the Northern Police District,
MPF, Quezon City; precisely because as Mr. Jose Castro has testified the said route was
found to be the best route after a careful study and consideration of all the factors involved.
Having conducted several marathon events in said route, appellant Intergames as well as
the volunteer groups and the other agencies involved were in fact familiar with the said
route. And assuming that there was an alternative place suitable for the said race, the
question is would they be allowed to block off the said road from traffic?

Also, the trial court erred in stating that there was no adequate number of marshals, police
officers and personnel to man the race so as to prevent injury to the participants.

The general rule is that the party who relies on negligence for his cause of action has the
burden of proving the existence of the same, otherwise his action fails.

Here, the appellants-spouses failed to prove that there was inadequate number of
marshals, police officers, and personnel because they failed to prove what number is
considered adequate.

This court considers that seven (7) traffic operatives, five (5) motorcycle policemen, fifteen
(15) patrolmen deployed along the route, fifteen (15) boyscouts, twelve (12) CA Ts, twenty
(20) barangay tanods, three (3) ambulances and three (3) medical teams were sufficient to
stage a safe marathon.

Moreover, the failure of Mr. Jose R. Castro, Jr. to produce records of the lists of those
constituting the volunteer help during the marathon is not fatal to the case considering that
one of the volunteers, Victor Landingin of the Citizens Traffic Action (CTA) testified in court
that CTA fielded five units on June 15, 1980, assigned as follows: (1) at the sphere head; (2)
at the finish line; (3) tail ender; (4) & (5) roving.

The trial court again erred in concluding that the admission of P/Lt. Jesus Lipana, head of
the traffic policemen assigned at the marathon, that he showed up only at the finish line
means that he did not bother to check on his men and did not give them appropriate
instructions. P/Lt. Lipana in his testimony explained that he did not need to be in the start
of the race because he had predesignated another capable police officer to start the race.

In addition, this Court finds that the precautionary measures and preparations adopted by
appellant Intergames were sufficient considering the circumstances surrounding the case.

Appellant Intergames, using its previous experiences in conducting safe and successful road
races, took all the necessary precautions and made all the preparations for the race. The
initial preparations included: determination of the route to be taken; and an ocular
inspection of the same to see if it was well-paved, whether it had less corners for easy
communication and coordination, and whether it was wide enough to accommodate
runners and transportation. Appellant Intergames choose the Don Mariano Marcos Avenue
primarily because it was well-paved; had wide lanes to accommodate runners and vehicular
traffic; had less corners thus facilitating easy communication and coordination among the
organizers and cooperating agencies; and was familiar to the race organizers and operating
agencies. The race covered a ten-kilometer course from the IBP lane to the Quezon City Hall
Compound passing through the Don Mariano Marcos A venue, which constituted the main
stretch of the route. Appellant Intergames scheduled the marathon on a Sunday morning,
when traffic along the route was at its lightest. Permission was sought from the then
Quezon City Mayor Adelina Rodriguez for the use of the Quezon City Hall Grandstand and
the street fronting it as the finish line. Police assistance was also obtained to control and
supervise the traffic. The Quezon City Traffic Detachment took charge of traffic control by
assigning policemen to the traffic route. The particular unit assigned during the race
underwent extensive training and had been involved in past marathons, including
marathons in highly crowded areas. The Philippine Boy Scouts tasked to assist the police
and monitor the progress of the race; and Citizens Traffic Action Group tasked with the
monitoring of the race, which assigned five units consisting of ten operatives, to provide
communication and assistance were likewise obtained. Finally, medical equipments and
personnel were also requested from Camp Aguinaldo, the Philippine Red Cross and the
Hospital ng Bagong Lipunan.

Neither does this Court find the appellant Intergames' conduct of the marathon the
proximate cause of the death of Rommel Abrogar. Proximate cause has been defined as
that which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces injury, and without which the result would not have occurred.

It appears that Rommel Abrogar, while running on Don Mariano Marcos A venue and after
passing the Philippine Atomic Energy Commission Building, was bumped by a jeepney which
apparently was racing against a minibus and the two vehicles were trying to crowd each
other. In fact, a criminal case was filed against the jeepney driver by reason of his having
killed Rommel Abrogar.

This proves that the death of Rommel Abrogar was caused by the negligence of the jeepney
driver. Rommel Abrogar cannot be faulted because he was performing a legal act; the
marathon was conducted with the permission and approval of all the city officials involved.
He had the right to be there. Neither can the appellant Intergames be faulted, as the
organizer of the said marathon, because it was not negligent in conducting the marathon.

Given the facts of this case, We believe that no amount of precaution can prevent such an
accident. Even if there were fences or barriers to separate the lanes for the runners and for
the vehicles, it would not prevent such an accident in the event that a negligent driver loses
control of his vehicle. And even if the road was blocked off from traffic, it would still not
prevent such an accident, if a jeepney driver on the other side of the road races with
another vehicle loses control of his wheel and as a result hits a person on the other side of
the road. Another way of saying this is: A defendant's tort cannot be considered a legal
cause of plaintiffs damage if that damage would have occurred just the same even though
the defendant's tort had not been committed.

This Court also finds the doctrine of assumption of risk applicable in the case at bar. As
explained by a well-known authority on torts:

"The general principle underlying the defense of assumption of risk is that a plaintiff who
voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the
defendant cannot recover for such harm. The defense may arise where a plaintiff, by
contract or otherwise, expressly agrees to accept a risk or harm arising from the
defendant's conduct, or where a plaintiff who fully understands a risk or harm caused by
the defendant's conduct, or by a condition created by the defendant, voluntarily chooses to
enter or remain, or to permit his property to enter or remain, within the area of such risk,
under circumstances manifesting his willingness to accept the risk.

x x x x

"Assumption of the risk in its primary sense arises by assuming through contract, which may
be implied, the risk of a known danger. Its essence is venturousness. It implies intentional
exposure to a known danger; It embraces a mental state of willingness; It pertains to the
preliminary conduct of getting into a dangerous employment or relationship, it means
voluntary incurring the risk of an accident, which may or may not occur, and which the
person assuming the risk may be careful to avoid; and it defeats recovery because it is a
previous abandonment of the right to complain if an accident occurs.

"Of course, if the defense is predicated upon an express agreement the agreement must be
valid, and in the light of this qualification the rule has been stated that a plaintiff who, by
contract or otherwise, expressly agreed to accept a risk of harm arising from the
defendant's negligent or reckless conduct, cannot recover for such harm unless the
agreement is invalid as contrary to public policy.

x x x x

"The defense of assumption of risk presupposes: (1) that the plaintiff had actual knowledge
of the danger; (2) that he understood and appreciated the risk from the danger; and (3) that
he voluntarily exposed himself to such risk. x x x

"The term 'risk' as used in this connection applies to known dangers, and not to things from
which danger may possibly flow. The risk referred to is the particular risk, or one of the
risks, which the plaintiff accepted within the context of the situation in which he placed
himself and the question is whether the specific conduct or condition which caused the
injury was such a risk."

In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar,
surveyed the route of the marathon and even attended a briefing before the race.
Consequently, he was aware that the marathon would pass through a national road and
that the said road would not be blocked off from traffic. And considering that he was
already eighteen years of age, had voluntarily participated in the marathon, with his
parents' consent, and was well aware of the traffic hazards along the route, he thereby
assumed all the risks of the race. This is precisely why permission from the participant's
parents, submission of a medical certificate and a waiver of all rights and causes of action
arising from the participation in the marathon which the participant or his heirs may have
against appellant Intergames were required as conditions in joining the marathon.

In the decision of the trial court, it stated that the risk mentioned in the waiver signed by
Rommel Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack
and other similar risks. It did not consider vehicular accident as one of the risks included in
the said waiver.

This Court does not agree. With respect to voluntary participation in a sport, the doctrine of
assumption of risk applies to any facet of the activity inherent in it and to any open and
obvious condition of the place where it is carried on. We believe that the waiver included
vehicular accidents for the simple reason that it was a road race run on public roads used by
vehicles. Thus, it cannot be denied that vehicular accidents are involved. It was not a track
race which is held on an oval and insulated from vehicular traffic. In a road race, there is
always the risk of runners being hit by motor vehicles while they train or compete. That risk
is inherent in the sport and known to runners. It is a risk they assume every time they
voluntarily engage in their sport.

Furthermore, where a person voluntarily participates in a lawful game or contest, he
assumes the ordinary risks of such game or contest so as to preclude recovery from the
promoter or operator of the game or contest for injury or death resulting therefrom.
Proprietors of amusements or of places where sports and games are played are not insurers
of safety of the public nor of their patrons.

In McLeod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy, seventeen
years of age, of ordinary intelligence and physique, who entered a race conducted by a
department store, the purpose of which was to secure guinea fowl which could be turned in
for cash prizes, had assumed the ordinary risks incident thereto and was barred from
recovering against the department store for injuries suffered when, within catching
distance, he stopped to catch a guinea, and was tripped or stumbled and fell to the
pavement, six or eight others falling upon him. The court further said: "In this (the race) he
was a voluntary participant. xxx The anticipated danger was as obvious to him as it was to
appellant (the department store). While not an adult, he was practically 17 years of age, of
ordinary intelligence, and perfectly able to determine the risks ordinarily incident to such
games. An ordinary boy of that age is practically as well advised as to the hazards of
baseball, basketball, football, foot races and other games of skill and endurance as is an
adult

x x x."

In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race the
winner of which was to represent the country in the annual Spirit of Pheidippides Marathon
Classic in Greece, if he equals or breaks the 29-minute mark for the 10-km. race. Thus,
Rommel Abrogar having voluntarily participated in the race, with his parents' consent,
assumed all the risks of the race.

Anent the second issue, this Court finds that appellant Cosmos must also be absolved from
any liability in the instant case.

This Court finds that the trial court erred in holding appellant Cosmos liable for being the
principal mover and resultant beneficiary of the event.

In its decision it said that in view of the fact that appellant Cosmos will be deriving certain
benefits from the marathon event, it has the responsibility to ensure the safety of all the
participants and the public. It further said that the stipulations in the contract entered into
by the two appellants, Cosmos and Intergames, relieving the former from any liability does
not bind third persons.

This Court does not agree with the reasoning of the trial court. The sponsorship contract
entered between appellant Cosmos and appellant Intergames specifically states that:

1. COSMOS BOTTLING CORPORATION shall pay INTERGAMES the amount of FIFTY FIVE
THOUSAND PESOS (₱55,000.00) representing full sponsorship fee and in consideration
thereof, INTERGAMES shall organize and stage a marathon race to be called '1st POP COLA
JUNIOR MARATHON.

x x x x

3. INTER GAMES shall draw up all the rules of the marathon race, eligibility requirements of
participants as well as provide all the staff required in the organization and actual staging of
the race. It is understood that all said staff shall be considered under the direct employ of
INTERGAMES which shall have full control over them.

x x x x

5. INTERGAMES shall secure all the necessary permits, clearances, traffic and police
assistance in all the areas covered by the entire route of the '1st POP COLA JUNIOR
MARATHON.

12. INTERGAMES shall hold COSMOS BOTTLING CORPORATION, completely free and
harmless from any claim or action for liability for any injuries or bodily harm which may be
sustained by any of the entries in the '1st POP COLA JUNIOR MARATHON', or for any
damages to the property or properties of third parties, which may likewise arise in the
course of the race.

From the foregoing, it is crystal clear that the role of the appellant Cosmos was limited to
providing financial assistance in the form of sponsorship. Appellant Cosmos' sponsorship
was merely in pursuance to the company's commitment for spo1is development of the
youth as well as for advertising purposes. The use of the name Cosmos was done for
advertising purposes only; it did not mean that it was an organizer of the said marathon. As
pointed out by Intergames' President, Jose Castro Jr., appellant Cosmos did not even have
the right to suggest the location and the number of runners.

To hold a defendant liable for torts, it must be clearly shown that he is the proximate cause
of the harm done to the plaintiff. The nexus or connection of the cause and effect, between
a negligent act and the damage done, must be established by competent evidence.

In this case, appellant Cosmos was not negligent in entering into a contract with the
appellant Intergames considering that the record of the latter was clean and that it has
conducted at least thirty (30) road races.

Also there is no direct or immediate causal connection between the financial sponsorship
and the death of Rommel Abrogar. The singular act of providing financial assistance without
participating in any manner in the conduct of the marathon cannot be palmed off as such
proximate cause. In fact, the appellant spouses never relied on any representation that
Cosmos organized the race. It was not even a factor considered by the appellants-spouses in
allowing their son to join said marathon.

In view of the fact that both defendants are not liable for the death of Rommel Abrogar,
appellants-spouses are not entitled to actual, moral, exemplary damages as well as for the
"loss of earning capacity" of their son. The third and fourth issues are thus moot and
academic.

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment appealed from must be, as it
hereby is, REVERSED and SET ASIDE, and another entered DISMISSING the complaint a quo.
The appellants shall bear their respective costs.

SO ORDERED.26

Issues

In this appeal, the petitioners submit that the CA gravely erred:

A.

x x x in reversing the RTC Decision, (and) in holding that respondent Intergames was not
negligent considering that:

1. Respondent Intergames failed to exercise the diligence of a good father of the family in
the conduct of the marathon in that it did not block off from traffic the marathon route; and

2. Respondent Intergames' preparations for the race, including the number of marshal
during the marathon, were glaringly inadequate to prevent the happening of the injury to
its participants.

B.

x x x in reversing the RTC Decision, (and) in holding that the doctrine of assumption of risk
finds application to the case at bar even though getting hit or run over by a vehicle is not an
inherent risk in a marathon race. Even assuming arguendo that deceased Abrogar made
such waiver as claimed, still there can be no valid waiver of one's right to life and limb for
being against public policy.

C.

x x x in reversing the RTC Decision, (and) in absolving respondent Cosmos from liability to
petitioners on the sole ground that respondent Cosmos' contract with respondent
Intergames contained a stipulation exempting the former from liability.

D.

x x x m reversing the RTC Decision and consequently holding respondents free from liability,
(and) in not awarding petitioners with actual, moral and exemplary damages for the death
of their child, Rommel Abrogar.27

Ruling of the Court

The appeal is partly meritorious.

I

Review of factual issues is allowed because of
the conflict between the findings of fact
by the RTC and the CA on the issue of negligence

The petitioners contend that Intergames was negligent; that Cosmos as the sponsor and
Intergames as the organizer of the marathon both had the obligation to provide a
reasonably safe place for the conduct of the race byblocking the route of the race from
vehicular traffic and by providing adequate manpower and personnel to ensure the safety
of the participants; and that Intergames had foreseen the harm posed by the situation but
had not exercised the diligence of a good father of a family to avoid the risk;28 hence, for
such omission, Intergames was negligent.29

Refuting, Cosmos and Intergames submit that the latter as the organizer was not negligent
because it had undertaken all the precautionary measures to ensure the safety of the race;
and that there was no duty on the part of the latter as the organizer to keep a racecourse
"free and clear from reasonably avoidable elements that would [occasion] or have the
probable tendency, to occasion injury."30

The issue of whether one or both defendants were negligent is a mixed issue of fact and
law. Does this not restrict the Court against reviewing the records in this appeal on
certiorari in order to settle the issue?

The Court can proceed to review the factual findings of the CA as an exception to the
general rule that it should not review issues of fact on appeal on certiorari. We have
recognized exceptions to the rule that the findings of fact of the CA are conclusive and
binding in the following instances: (1) when the findings are grounded entirely on
speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken,
absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when
in making its findings the CA went beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee; (7) when the findings are contrary
to the trial court; (8) when the findings are conclusions without citation of specific evidence
on which they are based; (9) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent; (10) when the
findings of fact are premised on the supposed absence of evidence and contradicted by the
evidence on record; and (11) when the CA manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different
conclusion.31 Considering that the CA arrived at factual findings contrary to those of the
trial court, our review of the records in this appeal should have to be made.

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.32 Under Article 1173 of the Civil Code, it consists
of the "omission of that diligence which is required by the nature of the obligation and
corresponds with the circumstances of the person, of the time and of the place."33 The Civil
Code makes liability for negligence clear under Article 2176,34 and Article 20.35

To determine the existence of negligence, the following time-honored test has been set in
Picart v. Smith:36

The test by which to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not determined by reference to
the personal judgment of the actor in the situation before him. The law considers what
would be reckless, blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation
must of course be always determined in the light of human experience and in view of the
facts involved in the particular case. Abstract speculation cannot here be of much value but
this much can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to take care only
when there is something before them to suggest or warn of danger. Could a prudent man,
in the case under consideration, foresee harm as a result of the course actually pursued? If
so, it was the duty of the actor to take precautions to guard against that harm. Reasonable
foresight of harm, followed by the ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is this: Conduct is said
to be negligent when a prudent man in the position of the tortfeasor would have foreseen
that an effect harmful to another was sufficiently probable to warrant his foregoing the
conduct or guarding against its consequences.37 (bold underscoring supplied for emphasis)

A careful review of the evidence presented, particularly the testimonies of the relevant
witnesses, in accordance with the foregoing guidelines reasonably leads to the conclusion
that the safety and precautionary measures undertaken by Intergames were short of the
diligence demanded by the circumstances of persons, time and place under consideration.
Hence, Intergames as the organizer was guilty of negligence.

The race organized by Intergames was a junior marathon participated in by young persons
aged 14 to 18 years. It was plotted to cover a distance of 10 kilometers, starting from the
IBP Lane,38 then going towards the Batasang Pambansa, and on to the circular route
towards the Don Mariano Marcos Highway,39 and then all the way back to the Quezon City
Hall compound where the finish line had been set.40 In staging the event, Intergames had
no employees of its own to man the race,41 and relied only on the "cooperating agencies"
and volunteers who had worked with it in previous races.42 The cooperating agencies
included the Quezon City police, barangay tanods, volunteers from the Boy Scouts of the
Philippines, the Philippine National Red Cross, the Citizens Traffic Action Group, and the
medical teams of doctors and nurses coming from the Office of the Surgeon General and
the Ospital ng Bagong Lipunan.43 According to Jose R. Castro, Jr., the President of
Intergames, the preparations for the event included conducting an ocular inspection of the
route of the race,44 sending out letters to the various cooperating agencies,45 securing
permits from proper authorities,46 putting up directional signs,47 and setting up the water
stations.48

We consider the "safeguards" employed and adopted by Intergames not adequate to meet
the requirement of due diligence.

For one, the police authorities specifically prohibited Intergames from blocking Don
Mariano Marcos Highway in order not to impair road accessibility to the residential villages
located beyond the IBP Lanc.49

However, contrary to the findings of the CA,50 Intergames had a choice on where to stage
the marathon, considering its admission of the sole responsibility for the conduct of the
event, including the choice of location.

Moreover, the CA had no basis for holding that "the said route was found to be the best
route after a careful study and consideration of all the factors involved."51 Castro, Jr.
himself attested that the route had been the best one only within the vicinity of the Batasan
Pambansa, to wit:

COURT

q Was there any specific reason from ... Was there any specific reason why you used this
route from Batasan to City Hall? Was there any special reason?

a We have, your Honor, conducted for example the Milo Marathon in that area in the
Batasan Pambansa and we found it to be relatively safer than any other areas within the
vicinity. As a matter of fact, we had more runners in the Milo Marathon at that time and
nothing happened, your Honor.52

The chosen route (IBP Lane, on to Don Mariano Marcos Highway, and then to Quezon City
Hall) was not the only route appropriate for the marathon. In fact, Intergames came under
no obligation to use such route especially considering that the participants, who were
young and inexperienced runners, would be running alongside moving vehicles.

Intergames further conceded that the marathon could have been staged on a blocked-off
route like Roxas Boulevard in Manila where runners could run against the flow of vehicular
traffic.53 Castro, Jr. stated in that regard:

COURT TO WITNESS

q What law are you talking about when you say I cannot violate the law?

a The police authority, your Honor, would not grant us permit because that is one of the
conditions that if we are to conduct a race we should run the race in accordance with the
flow of traffic.

q Did you not inform the police this is in accordance with the standard safety measures for a
marathon race?

a I believed we argued along that line but but (sic) again, if we insist the police again would
not grant us any permit like ... except in the case of Roxas Boulevard when it is normally
closed from 8 a.m. when you can run against the flow of traffic.

q You were aware for a runner to run on the same route of the traffic would be risky
because he would not know what is coming behind him?

a I believed we talked of the risk, your Honor when the risk has been minimized to a certain
level. Yes, there is greater risk when you run with the traffic than when you run against the
traffic to a certain level, it is correct but most of the races in Manila or elsewhere are being
run in accordance with the flow of the traffic.

x x x x

ATTY. VINLUAN

q Following the observation of the Court, considering the local condition, you will agree
with me the risks here are greater than in the United States where drivers on the whole
follow traffic rules?

a That is correct.

q And because of that fact, it is with all the more reason that you should take all necessary
precautions to insure the safety of the runners?

a That is correct.54

x x x x

COURT:

x x x x

Q In your case in all the marathons that you had managed, how many cases have you
encountered where the routes are blocked off for vehicular traffic?

A These are the International Marathon, Philippines Third World Marathon and the Milo
Marathon. We are blocking them to a certain length of time.

Q What was the purpose of blocking the routes? Is it for the safety of the runners or just a
matter of convenience?

A In blocking off the route, Your Honor, it is light easier for the runners to run without
impediments to be rendered by the people or by vehicles and at the same time it would be
also advantageous if the road will be blocked off for vehicle traffic permitted to us by the
traffic authorities.

Q So, in this case, you actually requested for the traffic authorities to block off the route?

A As far as I remember we asked Sgt. Pascual to block off the route but considering that it is
the main artery to Fairview Village, it would not be possible to block off the route since it
will cause a lot of inconvenience for the other people in those areas and jeepney drivers.

Q In other words, if you have your way you would have opted to block off the route.

A Yes, Your Honor.

Q But the fact is that the people did not agree.

A Yes, Your Honor, and it is stated in the permit given to us.55

Based on the foregoing testimony of Castro, Jr., Intergames had full awareness of the higher
risks involved in staging the race alongside running vehicles, and had the option to hold the
race in a route where such risks could be minimized, if not eliminated. But it did not heed
the danger already foreseen, if not expected, and went ahead with staging the race along
the plotted route on Don Mariano Marcos Highway on the basis of its supposedly familiarity
with the route. Such familiarity of the organizer with the route and the fact that previous
races had been conducted therein without any untoward incident56 were not in themselves
sufficient safeguards. The standards for avoidance of injury through negligence further
required Intergames to establish that it did take adequate measures to avert the foreseen
danger, but it failed to do so.

Another failing on the part of Intergames was the patent inadequacy of the personnel to
man the route. As borne by the records, Intergames had no personnel of its own for that
purpose, and relied exclusively on the assistance of volunteers, that is, "seven (7) traffic
operatives, five (5) motorcycle policemen, fifteen (15) patrolmen deployed along the route,
fifteen (15) boy scouts, twelve (12) CATs, twenty (20) barangay tanods, three (3)
ambulances and three (3) medical teams"57 to ensure the safety of the young runners who
would be running alongside moving vehicular traffic, to make the event safe and well
coordinated.

Although the party relying on negligence as his cause of action had the burden of proving
the existence of the same, Intergames' coordination and supervision of the personnel
sourced from the cooperating agencies did not satisfy the diligence required by the relevant
circumstances. In this regard, it can be pointed out that the number of deployed personnel,
albeit sufficient to stage the marathon, did not per se ensure the safe conduct of the race
without proof that such deployed volunteers had been properly coordinated and instructed
on their tasks.

That the proper coordination and instruction were crucial elements for the safe conduct of
the race was well known to Intergames. Castro, Jr. stated as much, to wit:

ATTY. LOMBOS:

x x x x

Q You also said that if you block off one side of the road, it is possible that it would be more
convenient to hold the race in that matter. Will you tell the Honorable Court if it is possible
also to hold a race safely if the road is not blocked off?

A Yes, sir.

Q How is it done.

A You can still run a race safely even if it is partially blocked off as long as you have the
necessary cooperation with the police authorities, and the police assigned along the route
of the race and the police assigned would be there, this will contribute the safety of the
participants, and also the vehicular division, as long as there are substantial publicities in
the newspapers, normally they will take the precautions in the use of the particular route of
the race.

Q Let me clarify this. Did you say that it is possible to hold a marathon safely if you have this
traffic assistance or coordination even if the route is blocked or not blocked?

A It is preferable to have the route blocked but in some cases, it would be impossible for the
portions of the road to be blocked totally. The route of the race could still be safe for
runners if a proper coordination or the agencies are notified especially police detailees to
man the particular stage.58

Sadly, Intergames' own evidence did not establish the conduct of proper coordination and
instruction. Castro, Jr. described the action plan adopted by Intergames in the preparation
for the race, as follows:

COURT

a Did you have any rehearsal let us say the race was conducted on June 15, now before June
15 you call a meeting of all these runners so you can have more or less a map-up and you
would indicate or who will be stationed in their places etc. Did you have such a rehearsal?

WITNESS

a It is not being done, your honor, but you have to specify them. You meet with the group
and you tell them that you wanted them to be placed in their particular areas which we
pointed out to them for example in the case of the Barangay Tanod, I specifically assigned
them in the areas and we sat down and we met.

COURT

q Did you have any action, plan or brochure which would indicate the assignment of each of
the participating group?

WITNESS

a Normally, sir, many of the races don't have that except when they called them to meeting
either as a whole group or the entire cooperating agency or meet them per group.

COURT

q Did you have a check list of the activities that would have to be entered before the actual
marathon some kind of system where you will indicate this particular activity has to be
checked etc. You did not have that?

WITNESS

q Are you asking, your honor, as a race director of I will check this because if I do that, I
won't have a race because that is not being done by any race director anywhere in the
world?

COURT

I am interested in your planning activities.

q In other words, what planning activities did you perform before the actual marathon?

a The planning activities we had, your honor, was to coordinate with the different agencies
involved informing them where they would be more or less placed.

COURT

q Let us go to ... Who was supposed to be coordinating with you as to the citizens action
group who was your ... you were referring to a person who was supposed to be manning
these people and who was the person whom you coordinate with the Traffic Action Group?

WITNESS

a I can only remember his name ... his family name is Esguerra.

q How about with the Tanods?

a With the Tanods his name is Pedring Serrano.

q And with the Boys Scouts? (sic)

a And with the Boys Scouts of the Phils. (sic) it is Mr. Greg Panelo.

COURT

q When did you last meet rather how many times did you meet with Esguerra before the
marathon on June 15?

WITNESS

a The Citizens Traffic Action Group, your honor, had been with me m previous races.

COURT

q I am asking you a specific question. I am not interested in the Citizen Traffic Action Group.
The marathon was on June 15, did you meet with him on June 14, June 13 or June 12?

a We met once, your honor, I cannot remember the date.

q You don't recall how many days before?

a I cannot recall at the moment.

q How about with Mr. Serrano, how many times did you meet with him before the race?

a If my mind does not fail me, your honor, I met him twice because he lives just within our
area and we always see each other.

q How about with Panelo, how many times did you meet him?

a With Mr. Panelo, I did not meet with them, your honor.

q Was there an occasion where before the race you met with these three people together
since you did not meet with Panelo anytime? Was there anytime where you met with
Serrano and Esguerra together?

WITNESS

a No, your honor.

COURT

g When you met once with Esguerra, where did you meet? What place?

a I cannot recall at the moment, your honor, since it was already been almost six years ago.

g How about Serrano, where did you meet him?

a We met in my place.

q From your house? He went in your house?

a Yes, your honor.

q So you did not have let us say a ... you don't have records of your meetings with these
people?

WITNESS

a With the Citizens Traffic Action, your honor?

COURT

a Yes.

WITNESS

a I don't have, your honor.

COURT

q Because you are familiar, I was just thinking this is an activity which requires planning etc.,
what I was thinking when you said this was never done in any part of the world but all
activities it has to be planned. There must be some planning, now are you saying that in this
particular case you had no written plan or check list of activities what activities have to be
implemented on a certain point and time, who are the persons whom you must meet in a
certain point and time.

WITNESS

a Normally, we did not have that, your honor, except the check list of all the things that
should be ready at a particular time prior to the race and the people to be involved and we
have a check list to see to it that everything would be in order before the start of the race.

COURT

Proceed.

ATTY. VINLUAN

q Following the question of the Court Mr. Castro, did you meet with Lt. Depano of the Police
Department who were supposed to supervise the police officers assigned to help during the
race?

a I did not meet with him, sir.

q You did not meet with him?

a I did not meet with him.

q In fact, ever before or during the race you had no occasion to talk to Lt. Depano. Is that
correct?

a That is correct, sir.

ATTY. VINLUAN

Based on the question of the Court and your answer to the question of the Court, are you
trying to say that this planning before any race of all these groups who have committed to
help in the race, this is not done in any part of the world?

WITNESS

a In the latter years when your race became bigger and bigger, this is being done now
slowly.

ATTY. VINLUAN

q But for this particular race you will admit that you failed to do it when you have to
coordinate and even have a dry run of the race you failed to do all of that in this particular
race, yes or no?

a Because there was ...

COURT

It was already answered by him when I asked him. The Court has ... Everybody has a copy
how of this time planner. Any activity or even meeting a girlfriend or most people plan.

A TTY. F .M. LOMBOS

If your honor please, before we proceed ...

WITNESS

In the latter years, your honor, when your race became bigger and bigger, this is being done
now slowly.

q For this particular race you will admit that you failed to do it?

a Because there was no need, sir.59

Probably sensing that he might have thereby contradicted himself, Castro, Jr. clarified on re-
direct examination:

ATTY. LOMBOS

Q Now, you also responded to a question during the same hearing and this appears on page
26 of the transcript that you did not hold any rehearsal or dry run for this particular
marathon. Could you tell the Court why you did not hold any such rehearsal or dry run?

A Because I believe there was no need for us to do that since we have been doing this for
many years and we have been the same people, same organization with us for so many
years conducting several races including some races in that area consisting of longer
distances and consisting of more runners, a lot more runners in that areay (sic) so these
people, they know exactly what to do and there was no need for us to have a rehearsal. I
believe this rehearsal would only be applicable if I am new and these people are new then,
we have to rehearse.

ATTY. LOMBOS

q You also stated Mr. Castro that you did not have any action plan or brochure which you
would indicate, an assignment of each of the participating group as to what to do during the
race. Will you please explain what you meant when you said you have no action plan or
brochure?

WITNESS

a What I mean of action plan, I did not have any written action plan but I was fully aware of
what to do. I mean, those people did not just go there out of nowhere. Obviously, there was
an action on my part because I have to communicate with them previously and to tell them
exactly what the race is all about; where to start; where it would end, and that is the reason
why we have the ambulances, we have the Boy Scouts, we have the CT A, we have the
police, so it was very obvious that there was a plan of action but not written because I know
pretty well exactly what to do. I was dealing with people who have been doing this for a
long period of time.60

While the level of trust Intergames had on its volunteers was admirable, the coordination
among the cooperating agencies was predicated on circumstances unilaterally assumed by
Intergames. It was obvious that Intergames' inaction had been impelled by its belief that it
did not need any action plan because it had been dealing with people who had been
manning similar races for a long period of time.

The evidence presented undoubtedly established that Intergames' notion of coordination
only involved informing the cooperating agencies of the date of the race, the starting and
ending points of the route, and the places along the route to man. Intergames did not
conduct any general assembly with all of them, being content with holding a few sporadic
meetings with the leaders of the coordinating agencies. It held no briefings of any kind on
the actual duties to be performed by each group of volunteers prior to the race. It did not
instruct the volunteers on how to minimize, if not avert, the risks of danger in manning the
race, despite such being precisely why their assistance had been obtained in the first place.

Intergames had no right to assume that the volunteers had already been aware of what
exactly they would be doing during the race. It had the responsibility and duty to give to
them the proper instructions despite their experience from the past races it had organized
considering that the particular race related to runners of a different level of experience, and
involved different weather and environmental conditions, and traffic situations. It should
have remembered that the personnel manning the race were not its own employees paid to
perform their tasks, but volunteers whose nature of work was remotely associated with the
safe conduct of road races. Verily, that the volunteers showed up and assumed their proper
places or that they were sufficient in number was not really enough. It is worthy to stress
that proper coordination in the context of the event did not consist in the mere presence of
the volunteers, but included making sure that they had been properly instructed on their
duties and tasks in order to ensure the safety of the young runners.

It is relevant to note that the participants of the 1st Pop Cola Junior Marathon were mostly
minors aged 14 to 18 years joining a race of that kind for the first time. The combined
factors of their youth, eagerness and inexperience ought to have put a reasonably prudent
organizer on higher guard as to their safety and security needs during the race, especially
considering Intergames' awareness of the risks already foreseen and of other risks already
known to it as of similar events in the past organizer. There was no question at all that a
higher degree of diligence was required given that practically all of the participants were
children or minors like Rommel; and that the law imposes a duty of care towards children
and minors even if ordinarily there was no such duty under the same circumstances had the
persons involved been adults of sufficient discretion.61 In that respect, Intergames did not
observe the degree of care necessary as the organizer, rendering it liable for negligence. As
the Court has emphasized in Corliss v. The Manila Railroad Company,62 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. 63

The circumstances of the persons, time and place required far more than what Intergames
undertook in staging the race. Due diligence would have made a reasonably prudent
organizer of the race participated in by young, inexperienced or beginner runners to
conduct the race in a route suitably blocked off from vehicular traffic for the safety and
security not only of the participants but the motoring public as well. Since the marathon
would be run alongside moving vehicular traffic, at the very least, Intergames ought to have
seen to the constant and closer coordination among the personnel manning the route to
prevent the foreseen risks from befalling the participants. But this it sadly failed to do.

II

The negligence of Intergames as the organizer
was the proximate cause of the death of Rommel

As earlier mentioned, the CA found that Rommel, while running the marathon on Don
Mariano Marcos A venue and after passing the Philippine Atomic Energy Commission
Building, was bumped by a passenger jeepney that was racing with a minibus and two other
vehicles as if trying to crowd each other out. As such, the death of Rommel was caused by
the negligence of the jeepney driver.

Intergames staunchly insists that it was not liable, maintaining that even assuming
arguendo that it was negligent, the negligence of the jeepney driver was the proximate
cause of the death of Rommel; hence, it should not be held liable.

Did the negligence of Intergames give rise to its liability for the death of ommel
notwithstanding the negligence of the jeepney driver?

In order for liability from negligence to arise, there must be not only proof of damage and
negligence, but also proof that the damage was the consequence of the negligence. The
Court has said in Vda. de Gregorio v. Go Chong Bing:64

x x x Negligence as a source of obligation both under the civil law and in American cases was
carefully considered and it was held:

We agree with counsel for appellant that under the Civil Code, as under the generally
accepted doctrine in the United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery, must establish by competent
evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally or some person for whose
acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage." (Taylor vs.
Manila Electric Railroad and Light Co., supra, p. 15.)

In accordance with the decision of the Supreme Court of Spain, in order that a person may
be held guilty for damage through negligence, it is necessary that there be an act or
omission on the part of the person who is to be charged with the liability and that damage
is produced by the said act or omission.65 (Emphasis supplied)

We hold that the negligence of Intergames was the proximate cause despite the intervening
negligence of the jeepney driver.

Proximate cause is "that which, in natural and continuous sequence, unbroken by any new
cause, produces an event, and without which the event would not have occurred."66 In
Vda. de Bataclan, et al. v. Medina,67 the Court, borrowing from American Jurisprudence,
has more extensively defined proximate cause thusly:

"* * * 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal connection
with its immediate predecessor, the final event in the chain immediately effecting the injury
as a natural and probable result of the cause which first acted, under such circumstances
that the person responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom."68

To be considered the proximate cause of the injury, the negligence need not be the event
closest in time to the injury; a cause is still proximate, although farther in time in relation to
the injury, if the happening of it set other foreseeable events into motion resulting
ultimately in the damage.69 According to an authority on civil law:70"A prior and remote
cause cannot be made the basis of an action, if such remote cause did nothing more than
furnish the condition or give rise to the occasion by which the injury was made possible, if
there intervened between such prior or remote cause and the injury a distinct, successive,
unrelated and efficient cause, even though such injury would not have happened but for
such condition or occasion. If no damage exists in the condition except because of the
independent cause, such condition was not the proximate cause. And if an independent
negligent act or defective condition sets into operation the circumstances which result in
injury because of the prior defective condition, such act or condition is the proximate
cause."

Bouvier adds:

In many cases important questions arise as to which, in the chain of acts tending to the
production of a given state of things, is to be considered the responsible cause. It is not
merely distance of place or of causation that renders a cause remote. The cause nearest in
the order of causation, without any efficient concurring cause to produce the result, may be
considered the direct cause. In the course of decisions of cases in which it is necessary to
determine which of several causes is so far responsible for the happening of the act or
injury complained of, what is known as the doctrine of proximate cause is constantly
resorted to in order to ascertain whether the act, omission, or negligence of the person
whom it is sought to hold liable was in law and in fact responsible for the result which is the
foundation of the action.71

x x x x

The question of proximate cause is said to be determined, not by the existence or non-
existence of intervening events, but by their character and the natural connection between
the original act or omission and the injurious consequences. When the intervening cause is
set in operation by the original negligence, such negligence is still the proximate cause; x x x
If the party guilty of the first act of negligence might have anticipated the intervening cause,
the connection is not broken; x x x. Any number of causes and effects may intervene, and if
they arc such as might with reasonable diligence have been foreseen, the last result is to be
considered as the proximate result. But whenever a new cause intervenes, which is not a
consequence of the first wrongful cause, which is not under control of the wrongdoer,
which could not have been foreseen by the exercise of reasonable diligence, and except for
which the final injurious consequence could not have happened, then such injurious
consequence must be deemed too remote; x x x.72 (bold underscoring supplied for
emphasis)

An examination of the records in accordance with the foregoing concepts supports the
conclusions that the negligence of Intergames was the proximate cause of the death of
Rommel; and that the negligence of the jeepney driver was not an efficient intervening
cause.

First of all, Intergames' negligence in not conducting the race in a road blocked off from
vehicular traffic, and in not properly coordinating the volunteer personnel manning the
marathon route effectively set the stage for the injury complained of. The submission that
Intergames had previously conducted numerous safe races did not persuasively
demonstrate that it had exercised due diligence because, as the trial court pointedly
observed, "[t]hey were only lucky that no accident occurred during the previous marathon
races but still the danger was there."73

Secondly, injury to the participants arising from an unfortunate vehicular accident on the
route was an event known to and foreseeable by Intergames, which could then have been
avoided if only Intergames had acted with due diligence by undertaking the race on a
blocked-off road, and if only Intergames had enforced and adopted more efficient
supervision of the race through its volunteers.

And, thirdly, the negligence of the jeepney driver, albeit an intervening cause, was not
efficient enough to break the chain of connection between the negligence of Intergames
and the injurious consequence suffered by Rommel. An intervening cause, to be considered
efficient, must be "one not produced by a wrongful act or omission, but independent of it,
and adequate to bring the injurious results. Any cause intervening between the first
wrongful cause and the final injury which might reasonably have been foreseen or
anticipated by the original wrongdoer is not such an efficient intervening cause as will
relieve the original wrong of its character as the proximate cause of the final injury."74

In fine, it was the duty of Intergames to guard Rommel against the foreseen risk, but it
failed to do so.

III

The doctrine of assumption of risk
had no application to Rommel

Unlike the R TC, the CA ruled that the doctrine of assumption of risk applied herein; hence,
it declared Intergames and Cosmos not liable. The CA rendered the following rationalization
to buttress its ruling, to wit:

In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar,
surveyed the route of the marathon and even attended a briefing before the race.
Consequently, he was aware that the marathon would pass through a national road and
that the said road would not be blocked off from traffic. And considering that he was
already eighteen years of age, had voluntarily participated in the marathon, with his
parents' consent, and was well aware of the traffic hazards along the route, he thereby
assumed all the risks of the race. This is precisely why permission from the participant's
parents, submission of a medical certificate and a waiver of all rights and causes of action
arising from the participation in the marathon which the participant or his heirs may have
against appellant Intergames were required as conditions in joining the marathon.

In the decision of the trial court, it stated that the risk mentioned in the waiver signed by
Rommel Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack
and other similar risks. It did not consider vehicular accident as one of the risks included in
the said waiver.

This Court does not agree. With respect to voluntary participation in a sport, the doctrine of
assumption of risk applies to any facet of the activity inherent in it and to any open and
obvious condition of the place where it is carried on. We believe that the waiver included
vehicular accidents for the simple reason that it was a road race run on public roads used by
vehicles. Thus, it cannot be denied that vehicular accidents are involved. It was not a track
race which is held on an oval and insulated from vehicular traffic. In a road race, there is
always the risk of runners being hit by motor vehicles while they train or compete. That risk
is inherent in the sport and known to runners. It is a risk they assume every time they
voluntarily engage in their sport.

Furthermore, where a person voluntarily participates in a lawful game or contest, he
assumes the ordinary risks of such game or contest so as to preclude recovery from the
promoter or operator of the game or contest for injury or death resulting therefrom.
Proprietors of amusements or of places where sports and games are played are not insurers
of safety of the public nor of their patrons.

In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy,
seventeen years of age, of ordinary intelligence and physique, who entered a race
conducted by a department store, the purpose of which was to secure guinea fowl which
could be turned in for cash prizes, had assumed the ordinary risks incident thereto and was
barred from recovering against the department store for injuries suffered when, within
catching distance, he stopped to catch a guinea, and was tripped or stumbled and fell to the
pavement, six or eight others falling upon him. The comi further said: "In this (the race) he
was a voluntary participant. x x x The anticipated danger was as obvious to him as it was to
appellant (the department store). While not an adult, he was practically 17 years of age, of
ordinary intelligence, and perfectly able to determine the risks ordinarily incident to such
games. An ordinary boy of that age is practically as well advised as to the hazards of
baseball, basketball, football, foot races and other games of skill and endurance as is an
adult

x x x."

In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race the
winner of which was to represent the country in the annual Spirit of Pheidippides Marathon
Classic in Greece, if he equals or breaks the 29-minute mark for the 19-km. race. Thus,
Rommel Abrogar having voluntarily participated in the race, with his parents' consent,
assumed all the risks of the race.75

The doctrine of assumption of risk means that one who voluntarily exposes himself to an
obvious, known and appreciated danger assumes the risk of injury that may result
therefrom.76 It rests on the fact that the person injured has consented to relieve the
defendant of an obligation of conduct toward him and to take his chance of injury from a
known risk, and whether the former has exercised proper caution or not is immaterial.77 In
other words, it is based on voluntary consent, express or implied, to accept danger of a
known and appreciated risk; it may sometimes include acceptance of risk arising from the
defendant's negligence, but one does not ordinarily assume risk of any negligence which he
does not know and appreciate.78 As a defense in negligence cases, therefore, the doctrine
requires the concurrence of three elements, namely: (1) the plaintiff must know that the
risk is present; (2) he must further understand its nature; and (3) his choice to incur it must
be free and voluntary.79 According to Prosser:80 "Knowledge of the risk is the watchword
of assumption of risk."

Contrary to the notion of the CA, the concurrence of the three elements was not shown to
exist. Rommel could not have assumed the risk of death when he participated in the race
because death was neither a known nor normal risk incident to running a race. Although he
had surveyed the route prior to the race and should be presumed to know that he would be
running the race alongside moving vehicular traffic, such knowledge of the general danger
was not enough, for some authorities have required that the knowledge must be of the
specific risk that caused the harm to him.81 In theory, the standard to be applied is a
subjective one, and should be geared to the particular plaintiff and his situation, rather than
that of the reasonable person of ordinary prudence who appears in contributory
negligence.82 He could not have appreciated the risk of being fatally struck by any moving
vehicle while running the race. Instead, he had every reason to believe that the organizer
had taken adequate measures to guard all participants against any danger from the fact
that he was participating in an organized marathon. Stated differently, nobody in his right
mind, including minors like him, would have joined the marathon if he had known of or
appreciated the risk of harm or even death from vehicular accident while running in the
organized running event. Without question, a marathon route safe and free from
foreseeable risks was the reasonable expectation of every runner participating in an
organized running event.

Neither was the waiver by Rommel, then a minor, an effective form of express or implied
consent in the context of the doctrine of assumption of risk. There is ample authority, cited
in Prosser,83 to the effect that a person does not comprehend the risk involved in a known
situation because of his youth,84 or lack of information or experience,85 and thus will not
be taken to consent to assume the risk.

Clearly, the doctrine of assumption of risk does not apply to bar recovery by the petitioners.

IV

Cosmos is not liable for the negligence
of Intergames as the organizer

Nonetheless, the CA did not err in absolving Cosmos from liability.

The sponsorship of the marathon by Cosmos was limited to financing the race. Cosmos did
nothing beyond that, and did not involve itself at all in the preparations for the actual
conduct of the race. This verity was expressly confirmed by Intergames, through Castro, Jr.,
who declared as follows:

COURT

q Do you discuss all your preparation with Cosmos Bottling Company?

a As far as the Cosmos Bottling Company (sic) was a sponsor as to the actual conduct of the
race, it is my responsibility. The conduct of the race is my responsibility. The sponsor has
nothing to do as well as its code of the race because they are not the ones running. I was
the one running. The responsibility of Cosmos was just to provide the sponsor's money.

COURT

q They have no right to who (sic) suggest the location, the number of runners, you decide
these yourself without consulting them?

a Yes, your honor.86

We uphold the finding by the CA that the role of Cosmos was to pursue its corporate
commitment to sports development of the youth as well as to serve the need for
advertising its business. In the absence of evidence showing that Cosmos had a hand in the
organization of the race, and took part in the determination of the route for the race and
the adoption of the action plan, including the safety and security measures for the benefit
of the runners, we cannot but conclude that the requirement for the direct or immediate
causal connection between the financial sponsorship of Cosmos and the death of Rommel
simply did not exist. Indeed, Cosmos' mere sponsorship of the race was, legally speaking,
too remote to be the efficient and proximate cause of the injurious consequences.

V

Damages

Article 2202 of the Civil Code lists the damages that the plaintiffs in a suit upon crimes and
quasi-delicts can recover from the defendant, viz.:

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which
are the natural and probable consequences of the act or omission complained of. It is not
necessary that such damages have been foreseen or could have reasonably been foreseen
by the defendant.

Accordingly, Intergames was liable for all damages that were the natural and probable
consequences of its negligence. In its judgment, the RTC explained the award of damages in
favor of the petitioners, as follows:

As borne by the evidence on record, the plaintiffs incurred medical, hospitalization and
burial expenses for their son in this aggregate amount of ₱28,061.65 (Exhibits "D'', "D-1"
and "D-2"). In instituting this case, they have paid their lawyer ₱5,000 as initial deposit,
their arrangement being that they would pay attorney's fees to the extent of 10% of
whatever amount would be awarded to them in this case.

For the loss of a son, it is unquestionable that plaintiffs suffered untold grief which should
entitle them to recover moral damages, and this Court believes that if only to assuage
somehow their untold grief but not necessarily to compensate them to the fullest, the
nominal amount of ₱l00,00.00 should be paid by the defendants.

For failure to adopt elementary and basic precautionary measure to insure the safety of the
participants so that sponsors and organizers of sports events should exercise utmost
diligence in preventing injury to the participants and the public as well, exemplary damages
should also be paid by the defendants and this Court considers the amount of ₱50,000.00

as reasonable.87

Although we will not disturb the foregoing findings and determinations, we need to add to
the justification for the grant of exemplary damages. Article 2231 of the Civil Code
stipulates that exemplary damages are to be awarded in cases of quasi-delict if the
defendant acted with gross negligence. The foregoing characterization by the RTC indicated
that Intergames' negligence was gross. We agree with the characterization. Gross
negligence, according to Mendoza v. Spouses Gomez,88 is the absence of care or diligence
as to amount to a reckless disregard of the safety of persons or property; it evinces a
thoughtless disregard of consequences without exerting any effort to avoid them. Indeed,
the failure of Intergames to adopt the basic precautionary measures for the safety of the
minor participants like Rommel was in reckless disregard of their safety. Conduct is reckless
when it is an extreme departure from ordinary care, in a situation in which a high degree of
danger is apparent; it must be more than any mere mistake resulting from inexperience,
excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simple
inattention.89 The RTC did not recognize the right of the petitioners to recover the loss of
earning capacity of Rommel. It should have, for doing so would have conformed to
jurisprudence whereby the Court has unhesitatingly allowed such recovery in respect of
children, students and other non-working or still unemployed victims. The legal basis for
doing so is Article 2206 (l) of the Civil Code, which stipulates that the defendant "shall be
liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid
to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the
court, unless the deceased on account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death."

Indeed, damages for loss of earning capacity may be awarded to the heirs of a deceased
non-working victim simply because earning capacity, not necessarily actual earning, may be
lost.

In Metro Manila Transit Corporation v. Court of Appeals,90 damages for loss of earning
capacity were granted to the heirs of a third-year high school student of the University of
the Philippines Integrated School who had been killed when she was hit and run over by the
petitioner's passenger bus as she crossed Katipunan Avenue in Quezon City. The Court
justified the grant in this wise:

Compensation of this nature is awarded not for loss of earnings but for loss of capacity to
earn money. Evidence must be presented that the victim, if not yet employed at the time of
death, was reasonably certain to complete training for a specific profession. In People v.
Teehankee, no award of compensation for loss of earning capacity was granted to the heirs
of a college freshman because there was no sufficient evidence on record to show that the
victim would eventually become a professional pilot. But compensation should be allowed
for loss of earning capacity resulting from the death of a minor who has not yet commenced
employment or training for a specific profession if sufficient evidence is presented to
establish the amount thereor.91 (bold underscoring supplied for emphasis)

In People v. Sanchez,92 damages for loss of earning capacity was also allowed to the heirs
of the victims of rape with homicide despite the lack of sufficient evidence to establish what
they would have earned had they not been killed. The Court rationalized its judgment with
the following observations:

Both Sarmenta and Gomez were senior agriculture students at UPLB, the country's leading
educational institution in agriculture.1âwphi1 As reasonably assumed by the trial court,
both victims would have graduated in due course. Undeniably, their untimely death
deprived them of their future time and earning capacity. For these deprivation, their heirs
are entitled to compensation. xxxx. However, considering that Sarmenta and Gomez would
have graduated in due time from a reputable university, it would not be unreasonable to
assume that in 1993 they would have earned more than the minimum wage. All factors
considered, the Court believes that it is fair and reasonable to fix the monthly income that
the two would have earned in 1993 at ₱8,000.000 per month (or ₱96,000.00/year) and their
deductible living and other incidental expenses at ₱3,000.00 per month (or
₱36,000.00/year).93 (bold underscoring supplied for emphasis)

In Perena v. Zarate,94 the Court fixed damages for loss of earning capacity to be paid to the
heirs of the 15-year-old high school student of Don Bosco Technical Institute killed when a
moving train hit the school van ferrying him to school while it was traversing the railroad
tracks. The RTC and the CA had awarded damages for loss of earning capacity computed on
the basis of the minimum wage in effect at the time of his death. Upholding said findings,
the Court opined:

x x x, the fact that Aaron was then without a history of earnings should not be taken against
his parents and in favor of the defendants whose negligence not only cost Aaron his life and
his right to work and earn money, but also deprived his parents of their right to his presence
and his services as well. x x x. Accordingly, we emphatically hold in favor of the
indemnification for Aaron's loss of earning capacity despite him having been unemployed,
because compensation of this nature is awarded not for loss of time or earnings but for loss
of the deceased's power or ability to earn money.

The petitioners sufficiently showed that Rommel was, at the time of his untimely but much
lamented death, able-bodied, in good physical and mental state, and a student in good
standing.95 It should be reasonable to assume that Rommel would have finished his
schooling and would turn out to be a useful and productive person had he not died. Under
the foregoing jurisprudence, the petitioners should be compensated for losing Rommel's
power or ability to earn. The basis for the computation of earning capacity is not what he
would have become or what he would have wanted to be if not for his untimely death, but
the minimum wage in effect at the time of his death. The formula for this purpose is:

Net Earning Capacity = Life Expectancy x [Gross Annual Income less Necessary Living
Expenses ]96

Life expectancy is equivalent to 2/3 multiplied by the difference of 80 and the age of the
deceased. Since Rommel was 18 years of age at the time of his death, his life expectancy
was 41 years. His projected gross annual income, computed based on the minimum wage
for workers in the non-agricultural sector in effect at the time of his death,97 then fixed at
₱l4.00/day, is ₱5,535.83. Allowing for necessary living expenses of 50% of his projected
gross annual income, his total net earning capacity is ₱l13,484.52.

Article 2211 of the Civil Code expressly provides that interest, as a part of damages, may be
awarded in crimes and quasi-delicts at the discretion of the court. The rate of interest
provided under Article 2209 of the Civil Code is 6% per annum in the absence of stipulation
to the contrary. The legal interest rate of 6% per annum is to be imposed upon the total
amounts herein awarded from the time of the judgment of the RTC on May 10, 1991 until
finality of judgment.98 Moreover, pursuant to Article 221299 of the Civil Code, the legal
interest rate of 6o/o per annum is to be further imposed on the interest earned up to the
time this judgment of the Court becomes final and executory until its full satisfaction.100

Article 2208 of the Civil Code expressly allows the recovery of attorney's fees and expenses
of litigation when exemplary damages have been awarded.1âwphi1 Thus, we uphold the
RTC's allocation of attorney's fees in favor of the petitioners equivalent to 10% of the total
amount to be recovered, inclusive of the damages for loss of earning capacity and interests,
which we consider to be reasonable under the circumstances.

WHEREFORE, the Court PARTLY AFFIRMS the decision promulgated on March 10, 2004 to
the extent that it absolved COSMOS BOTTLING COMPANY, INC. from liability; REVERSES and
SETS ASIDE the decision as to INTERGAMES, INC., and REINSTATES as to it the judgment
rendered on May 10, 1991 by the Regional Trial Court, Branch 83, in Quezon City subject to
the MODIFICATIONS that INTERGAMES, INC. is ORDERED TO PAY to the petitioners, in
addition to the aw3:rds thereby allowed: (a) the sum of ₱l13,484.52 as damages for the loss
of Rommel Abrogar's earning capacity; (b) interest of 6% per annum on the actual damages,
moral damages, exemplary damages and loss of earning capacity reckoned from May 10,
1991 until full payment; (c) compounded interest of 6% per annum from the finality of this
decision until full payment; and (d) costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson

BIENVENIDO L. REYES
Associate Justice FRANCIS H. JARDELEZA
Associate Justice
NOEL G. TIJAM
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson

C E R T I F I C A T I O N

Pursuant to the Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court’s
Division.

MARIA LOURDES P.A. SERENO
Chief Justice

4. LAST CLEAR CHANCE

a.) Sabido VS Custodio ( Same case as in proximate cause)
b.) Picart VS Smith
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.
G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr.,
the sum of P31,000, as damages alleged to have been caused by an automobile driven by
the defendant. From a judgment of the Court of First Instance of the Province of La Union
absolving the defendant from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12,
1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion
in question the plaintiff was riding on his pony over said bridge. Before he had gotten half
way across, the defendant approached from the opposite direction in an automobile, going
at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he
saw a horseman on it and blew his horn to give warning of his approach. He continued his
course and after he had taken the bridge he gave two more successive blasts, as it appeared
to him that the man on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals.
However, being perturbed by the novelty of the apparition or the rapidity of the approach,
he pulled the pony closely up against the railing on the right side of the bridge instead of
going to the left. He says that the reason he did this was that he thought he did not have
sufficient time to get over to the other side. The bridge is shown to have a length of about
75 meters and a width of 4.80 meters. As the automobile approached, the defendant
guided it toward his left, that being the proper side of the road for the machine. In so doing
the defendant assumed that the horseman would move to the other side. The pony had not
as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing
that the pony was apparently quiet, the defendant, instead of veering to the right while yet
some distance away or slowing down, continued to approach directly toward the horse
without diminution of speed. When he had gotten quite near, there being then no
possibility of the horse getting across to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of the railing where it as then
standing; but in so doing the automobile passed in such close proximity to the animal that it
became frightened and turned its body across the bridge with its head toward the railing. In
so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb
was broken. The horse fell and its rider was thrown off with some violence. From the
evidence adduced in the case we believe that when the accident occurred the free space
where the pony stood between the automobile and the railing of the bridge was probably
less than one and one half meters. As a result of its injuries the horse died. The plaintiff
received contusions which caused temporary unconsciousness and required medical
attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car
in the manner above described was guilty of negligence such as gives rise to a civil
obligation to repair the damage done; and we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right to assume that the horse and the rider
would pass over to the proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety in front of the moving
vehicle. In the nature of things this change of situation occurred while the automobile was
yet some distance away; and from this moment it was not longer within the power of the
plaintiff to escape being run down by going to a place of greater safety. The control of the
situation had then passed entirely to the defendant; and it was his duty either to bring his
car to an immediate stop or, seeing that there were no other persons on the bridge, to take
the other side and pass sufficiently far away from the horse to avoid the danger of collision.
Instead of doing this, the defendant ran straight on until he was almost upon the horse. He
was, we think, deceived into doing this by the fact that the horse had not yet exhibited
fright. But in view of the known nature of horses, there was an appreciable risk that, if the
animal in question was unacquainted with automobiles, he might get exited and jump
under the conditions which here confronted him. When the defendant exposed the horse
and rider to this danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use that person
would have used in the same situation? If not, then he is guilty of negligence. The law here
in effect adopts the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation
must of course be always determined in the light of human experience and in view of the
facts involved in the particular case. Abstract speculations cannot here be of much value but
this much can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to take care only
when there is something before them to suggest or warn of danger. Could a prudent man,
in the case under consideration, foresee harm as a result of the course actually pursued? If
so, it was the duty of the actor to take precautions to guard against that harm. Reasonable
foresight of harm, followed by ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the tortfeasor would have foreseen that an
effect harmful to another was sufficiently probable to warrant his foregoing conduct or
guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that
negligence is clearly established. A prudent man, placed in the position of the defendant,
would in our opinion, have recognized that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to the horse and the rider as reasonable
consequence of that course. Under these circumstances the law imposed on the defendant
the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last fair chance to avoid the
impending harm and fails to do so is chargeable with the consequences, without reference
to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should
perhaps be mentioned in this connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise have been assessed
wholly against the other party. The defendant company had there employed the plaintiff, as
a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's
yards located not far away. The rails were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the track gave way by reason of the
combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company
was negligent in having failed to repair the bed of the track and also that the plaintiff was,
at the moment of the accident, guilty of contributory negligence in walking at the side of
the car instead of being in front or behind. It was held that while the defendant was liable
to the plaintiff by reason of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted
in an omission only. The liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now before us, where the defendant
was actually present and operating the automobile which caused the damage, we do not
feel constrained to attempt to weigh the negligence of the respective parties in order to
apportion the damage according to the degree of their relative fault. It is enough to say that
the negligence of the defendant was in this case the immediate and determining cause of
the accident and that the antecedent negligence of the plaintiff was a more remote factor
in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the
defendant's answer, to the effect that the subject matter of the action had been previously
adjudicated in the court of a justice of the peace. In this connection it appears that soon
after the accident in question occurred, the plaintiff caused criminal proceedings to be
instituted before a justice of the peace charging the defendant with the infliction of serious
injuries (lesiones graves). At the preliminary investigation the defendant was discharged by
the magistrate and the proceedings were dismissed. Conceding that the acquittal of the
defendant at the trial upon the merits in a criminal prosecution for the offense mentioned
would be res adjudicata upon the question of his civil liability arising from negligence -- a
point upon which it is unnecessary to express an opinion -- the action of the justice of the
peace in dismissing the criminal proceeding upon the preliminary hearing can have no
effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed,
and judgment is her rendered that the plaintiff recover of the defendant the sum of two
hundred pesos (P200), with costs of other instances. The sum here awarded is estimated to
include the value of the horse, medical expenses of the plaintiff, the loss or damage
occasioned to articles of his apparel, and lawful interest on the whole to the date of this
recovery. The other damages claimed by the plaintiff are remote or otherwise of such
character as not to be recoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.


Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I
do so because of my understanding of the "last clear chance" rule of the law of negligence
as particularly applied to automobile accidents. This rule cannot be invoked where the
negligence of the plaintiff is concurrent with that of the defendant. Again, if a traveler when
he reaches the point of collision is in a situation to extricate himself and avoid injury, his
negligence at that point will prevent a recovery. But Justice Street finds as a fact that the
negligent act of the interval of time, and that at the moment the plaintiff had no
opportunity to avoid the accident. Consequently, the "last clear chance" rule is applicable.
In other words, when a traveler has reached a point where he cannot extricate himself and
vigilance on his part will not avert the injury, his negligence in reaching that position
becomes the condition and not the proximate cause of the injury and will not preclude a
recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

c.) Mckee VS IAC

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.
G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr.,
the sum of P31,000, as damages alleged to have been caused by an automobile driven by
the defendant. From a judgment of the Court of First Instance of the Province of La Union
absolving the defendant from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12,
1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion
in question the plaintiff was riding on his pony over said bridge. Before he had gotten half
way across, the defendant approached from the opposite direction in an automobile, going
at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he
saw a horseman on it and blew his horn to give warning of his approach. He continued his
course and after he had taken the bridge he gave two more successive blasts, as it appeared
to him that the man on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals.
However, being perturbed by the novelty of the apparition or the rapidity of the approach,
he pulled the pony closely up against the railing on the right side of the bridge instead of
going to the left. He says that the reason he did this was that he thought he did not have
sufficient time to get over to the other side. The bridge is shown to have a length of about
75 meters and a width of 4.80 meters. As the automobile approached, the defendant
guided it toward his left, that being the proper side of the road for the machine. In so doing
the defendant assumed that the horseman would move to the other side. The pony had not
as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing
that the pony was apparently quiet, the defendant, instead of veering to the right while yet
some distance away or slowing down, continued to approach directly toward the horse
without diminution of speed. When he had gotten quite near, there being then no
possibility of the horse getting across to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of the railing where it as then
standing; but in so doing the automobile passed in such close proximity to the animal that it
became frightened and turned its body across the bridge with its head toward the railing. In
so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb
was broken. The horse fell and its rider was thrown off with some violence. From the
evidence adduced in the case we believe that when the accident occurred the free space
where the pony stood between the automobile and the railing of the bridge was probably
less than one and one half meters. As a result of its injuries the horse died. The plaintiff
received contusions which caused temporary unconsciousness and required medical
attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car
in the manner above described was guilty of negligence such as gives rise to a civil
obligation to repair the damage done; and we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right to assume that the horse and the rider
would pass over to the proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety in front of the moving
vehicle. In the nature of things this change of situation occurred while the automobile was
yet some distance away; and from this moment it was not longer within the power of the
plaintiff to escape being run down by going to a place of greater safety. The control of the
situation had then passed entirely to the defendant; and it was his duty either to bring his
car to an immediate stop or, seeing that there were no other persons on the bridge, to take
the other side and pass sufficiently far away from the horse to avoid the danger of collision.
Instead of doing this, the defendant ran straight on until he was almost upon the horse. He
was, we think, deceived into doing this by the fact that the horse had not yet exhibited
fright. But in view of the known nature of horses, there was an appreciable risk that, if the
animal in question was unacquainted with automobiles, he might get exited and jump
under the conditions which here confronted him. When the defendant exposed the horse
and rider to this danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use that person
would have used in the same situation? If not, then he is guilty of negligence. The law here
in effect adopts the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation
must of course be always determined in the light of human experience and in view of the
facts involved in the particular case. Abstract speculations cannot here be of much value but
this much can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to take care only
when there is something before them to suggest or warn of danger. Could a prudent man,
in the case under consideration, foresee harm as a result of the course actually pursued? If
so, it was the duty of the actor to take precautions to guard against that harm. Reasonable
foresight of harm, followed by ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the tortfeasor would have foreseen that an
effect harmful to another was sufficiently probable to warrant his foregoing conduct or
guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that
negligence is clearly established. A prudent man, placed in the position of the defendant,
would in our opinion, have recognized that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to the horse and the rider as reasonable
consequence of that course. Under these circumstances the law imposed on the defendant
the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last fair chance to avoid the
impending harm and fails to do so is chargeable with the consequences, without reference
to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should
perhaps be mentioned in this connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise have been assessed
wholly against the other party. The defendant company had there employed the plaintiff, as
a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's
yards located not far away. The rails were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the track gave way by reason of the
combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company
was negligent in having failed to repair the bed of the track and also that the plaintiff was,
at the moment of the accident, guilty of contributory negligence in walking at the side of
the car instead of being in front or behind. It was held that while the defendant was liable
to the plaintiff by reason of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted
in an omission only. The liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now before us, where the defendant
was actually present and operating the automobile which caused the damage, we do not
feel constrained to attempt to weigh the negligence of the respective parties in order to
apportion the damage according to the degree of their relative fault. It is enough to say that
the negligence of the defendant was in this case the immediate and determining cause of
the accident and that the antecedent negligence of the plaintiff was a more remote factor
in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the
defendant's answer, to the effect that the subject matter of the action had been previously
adjudicated in the court of a justice of the peace. In this connection it appears that soon
after the accident in question occurred, the plaintiff caused criminal proceedings to be
instituted before a justice of the peace charging the defendant with the infliction of serious
injuries (lesiones graves). At the preliminary investigation the defendant was discharged by
the magistrate and the proceedings were dismissed. Conceding that the acquittal of the
defendant at the trial upon the merits in a criminal prosecution for the offense mentioned
would be res adjudicata upon the question of his civil liability arising from negligence -- a
point upon which it is unnecessary to express an opinion -- the action of the justice of the
peace in dismissing the criminal proceeding upon the preliminary hearing can have no
effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed,
and judgment is her rendered that the plaintiff recover of the defendant the sum of two
hundred pesos (P200), with costs of other instances. The sum here awarded is estimated to
include the value of the horse, medical expenses of the plaintiff, the loss or damage
occasioned to articles of his apparel, and lawful interest on the whole to the date of this
recovery. The other damages claimed by the plaintiff are remote or otherwise of such
character as not to be recoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.


Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I
do so because of my understanding of the "last clear chance" rule of the law of negligence
as particularly applied to automobile accidents. This rule cannot be invoked where the
negligence of the plaintiff is concurrent with that of the defendant. Again, if a traveler when
he reaches the point of collision is in a situation to extricate himself and avoid injury, his
negligence at that point will prevent a recovery. But Justice Street finds as a fact that the
negligent act of the interval of time, and that at the moment the plaintiff had no
opportunity to avoid the accident. Consequently, the "last clear chance" rule is applicable.
In other words, when a traveler has reached a point where he cannot extricate himself and
vigilance on his part will not avert the injury, his negligence in reaching that position
becomes the condition and not the proximate cause of the injury and will not preclude a
recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

5. EMERGENCY RULE
a.) Gan VS CA
Republic of the Philippines
SUPREME COURT
Manila

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.


FERNAN, C.J.:

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 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 parts 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
paints, 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

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 of- 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 (Pl2,000.00) without, however, any subsidiary
imprisonment in case of insolvency, and to pay the costs. 3

Petitioner now appeals to this Court on the following assignments of errors:

I

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

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 oil the doer to take precaution against its mischievous results and the failure to do so
constitutes negligence. 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

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

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 light 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 stating::

And 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 akin kotse subalit
siya naman biglang pagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay wala ng
magawa . Iyan ho ang buong pangyayari nang nasabing aksidente.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 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 powerfull 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., is on leave.


b.) Valenzuela VS CA
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISON

G.R. No. 115024 February 7, 1996

MA. LOURDES VALENZUELA, petitioner,
vs.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x

G.R. No. 117944 February 7, 1996

RICHARD LI, petitioner,
vs.
COURT OF APPEALS and LOURDES VALENZUELA, respondents.

D E C I S I O N

KAPUNAN, J.:

These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court
stem from an action to recover damages by petitioner Lourdes Valenzuela in the Regional
Trial Court of Quezon City for injuries sustained by her in a vehicular accident in the early
morning of June 24, 1990. The facts found by the trial court are succinctly summarized by
the Court of Appeals below:

This is an action to recover damages based on quasi-delict, for serious physical injuries
sustained in a vehicular accident.

Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24,
1990, plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No.
FFU 542 from her restaurant at Marcos highway to her home at Palanza Street, Araneta
Avenue. She was travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading
towards the direction of Manila. Before reaching A. Lake Street, she noticed something
wrong with her tires; she stopped at a lighted place where there were people, to verify
whether she had a flat tire and to solicit help if needed. Having been told by the people
present that her rear right tire was flat and that she cannot reach her home in that car's
condition, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency
lights, alighted from the car, and went to the rear to open the trunk. She was standing at
the left side of the rear of her car pointing to the tools to a man who will help her fix the tire
when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li
and registered in the name of defendant Alexander Commercial, Inc. Because of the impact
plaintiff was thrown against the windshield of the car of the defendant, which was
destroyed, and then fell to the ground. She was pulled out from under defendant's car.
Plaintiff's left leg was severed up to the middle of her thigh, with only some skin and sucle
connected to the rest of the body. She was brought to the UERM Medical Memorial Center
where she was found to have a "traumatic amputation, leg, left up to distal thigh (above
knee)". She was confined in the hospital for twenty (20) days and was eventually fitted with
an artificial leg. The expenses for the hospital confinement (P120,000.00) and the cost of
the artificial leg (P27,000.00) were paid by defendants from the car insurance.

In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary
damages in the amount of P100,000.00 and other medical and related expenses amounting
to a total of P180,000.00, including loss of expected earnings.

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at
55 kph; considering that it was raining, visibility was affected and the road was wet. Traffic
was light. He testified that he was driving along the inner portion of the right lane of Aurora
Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted, in the
vicinity of A. Lake Street, San Juan, with a car coming from the opposite direction, travelling
at 80 kph, with "full bright lights". Temporarily blinded, he instinctively swerved to the right
to avoid colliding with the oncoming vehicle, and bumped plaintiff's car, which he did not
see because it was midnight blue in color, with no parking lights or early warning device,
and the area was poorly lighted. He alleged in his defense that the left rear portion of
plaintiff's car was protruding as it was then "at a standstill diagonally" on the outer portion
of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of
plaintiff's witness that after being bumped the car of the plaintiff swerved to the right and
hit another car parked on the sidewalk. Defendants counterclaimed for damages, alleging
that plaintiff was reckless or negligent, as she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and
the sketch of the three cars involved in the accident, testified that the plaintiff's car was
"near the sidewalk"; this witness did not remember whether the hazard lights of plaintiff's
car were on, and did not notice if there was an early warning device; there was a street light
at the corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not mostly dark,
i.e. "things can be seen" (p. 16, tsn, Oct. 28, 1991).

A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her
car and opened the trunk compartment, defendant's car came approaching very fast ten
meters from the scene; the car was "zigzagging". The rear left side of plaintiff's car was
bumped by the front right portion of defendant's car; as a consequence, the plaintiff's car
swerved to the right and hit the parked car on the sidewalk. Plaintiff was thrown to the
windshield of defendant's car, which was destroyed, and landed under the car. He stated
that defendant was under the influence of liquor as he could "smell it very well" (pp. 43, 79,
tsn, June 17, 1991).

After trial, the lower court sustained the plaintiff's submissions and found defendant
Richard Li guilty of gross negligence and liable for damages under Article 2176 of the Civil
Code. The trial court likewise held Alexander Commercial, Inc., Li's employer, jointly and
severally liable for damages pursuant to Article 2180. It ordered the defendants to jointly
and severally pay the following amounts:

1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff
as a result of her severed left leg;

2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of
plaintiff's Bistro La Conga restaurant three (3) weeks after the accident on June 24, 1990; (b)
P20,000.00, a month, as unrealized profits of the plaintiff in her Bistro La Conga restaurant,
from August, 1990 until the date of this judgment and (c) P30,000.00, a month for
unrealized profits in plaintiff's two (2) beauty salons from July, 1990 until the date of this
decision;

3. P1,000,000.00, in moral damages;

4. P50,000.00, as exemplary damages;

5. P60,000.00, as reasonable attorney's fees; and

6. Costs.

As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial
and for Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs.
Richard Li), tending to show that the point of impact, as depicted by the pieces of
glass/debris from the parties' cars, appeared to be at the center of the right lane of Aurora
Blvd. The trial court denied the motion. Defendants forthwith filed an appeal with the
respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of Appeals
found that there was "ample basis from the evidence of record for the trial court's finding
that the plaintiff's car was properly parked at the right, beside the sidewalk when it was
bumped by defendant's car."1 Dismissing the defendants' argument that the plaintiff's car
was improperly parked, almost at the center of the road, the respondent court noted that
evidence which was supposed to prove that the car was at or near center of the right lane
was never presented during the trial of the case.2 The respondent court furthermore
observed that:

Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it
was not corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that
he was outside his beerhouse located at Aurora Boulevard after A. Lake Street, at or about
2:00 a.m. of June 24, 1990 when his attention was caught by a beautiful lady (referring to
the plaintiff) alighting from her car and opening the trunk compartment; he noticed the car
of Richard Li "approaching very fast ten (10) meters away from the scene"; defendant's car
was zigzagging", although there were no holes and hazards on the street, and "bumped the
leg of the plaintiff" who was thrown against the windshield of defendant's care, causing its
destruction. He came to the rescue of the plaintiff, who was pulled out from under
defendant's car and was able to say "hurting words" to Richard Li because he noticed that
the latter was under the influence of liquor, because he "could smell it very well" (p. 36, et.
seq., tsn, June 17, 1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the
1970's, but did not know either plaintiff or defendant Li before the accident.

In agreeing with the trial court that the defendant Li was liable for the injuries sustained by
the plaintiff, the Court of Appeals, in its decision, however, absolved the Li's employer,
Alexander Commercial, Inc. from any liability towards petitioner Lourdes Valenzuela and
reduced the amount of moral damages to P500,000.00. Finding justification for exemplary
damages, the respondent court allowed an award of P50,000.00 for the same, in addition to
costs, attorney's fees and the other damages. The Court of Appeals, likewise, dismissed the
defendants' counterclaims.3

Consequently, both parties assail the respondent court's decision by filing two separate
petitions before this Court. Richard Li, in G.R. No. 117944, contends that he should not be
held liable for damages because the proximate cause of the accident was Ma. Lourdes
Valenzuela's own negligence. Alternatively, he argues that in the event that this Court finds
him negligent, such negligence ought to be mitigated by the contributory negligence of
Valenzuela.

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent
court's decision insofar as it absolves Alexander Commercial, Inc. from liability as the owner
of the car driven by Richard Li and insofar as it reduces the amount of the actual and moral
damages awarded by the trial court.4

As the issues are intimately related, both petitions are hereby consolidated.

It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial
questions of law. What it, in effect, attempts to have this Court review are factual findings
of the trial court, as sustained by the Court of Appeals finding Richard Li grossly negligent in
driving the Mitsubishi Lancer provided by his company in the early morning hours of June
24, 1990. This we will not do. As a general rule, findings of fact of the Court of Appeals are
binding and conclusive upon us, and this Court will not normally disturb such factual
findings unless the findings of fact of the said court are palpably unsupported by the
evidence on record or unless the judgment itself is based on a misapprehension of facts.5

In the first place, Valenzuela's version of the incident was fully corroborated by an
uninterested witness, Rogelio Rodriguez, the owner-operator of an establishment located
just across the scene of the accident. On trial, he testified that he observed a car being
driven at a "very fast" speed, racing towards the general direction of Araneta Avenue.6
Rodriguez further added that he was standing in front of his establishment, just ten to
twenty feet away from the scene of the accident, when he saw the car hit Valenzuela,
hurtling her against the windshield of the defendant's Mitsubishi Lancer, from where she
eventually fell under the defendant's car. Spontaneously reacting to the incident, he
crossed the street, noting that a man reeking with the smell of liquor had alighted from the
offending vehicle in order to survey the incident.7 Equally important, Rodriguez declared
that he observed Valenzuela's car parked parallel and very near the sidewalk,8 contrary to
Li's allegation that Valenzuela's car was close to the center of the right lane. We agree that
as between Li's "self-serving" asseverations and the observations of a witness who did not
even know the accident victim personally and who immediately gave a statement of the
incident similar to his testimony to the investigator immediately after the incident, the
latter's testimony deserves greater weight. As the court emphasized:

The issue is one of credibility and from Our own examination of the transcript, We are not
prepared to set aside the trial court's reliance on the testimony of Rodriguez negating
defendant's assertion that he was driving at a safe speed. While Rodriguez drives only a
motorcycle, his perception of speed is not necessarily impaired. He was subjected to cross-
examination and no attempt was made to question .his competence or the accuracy of his
statement that defendant was driving "very fast". This was the same statement he gave to
the police investigator after the incident, as told to a newspaper report (Exh. "P"). We see
no compelling basis for disregarding his testimony.

The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of
the testimony. Rodriguez testified that the scene of the accident was across the street
where his beerhouse is located about ten to twenty feet away (pp. 35-36, tsn, June 17,
1991). He did not state that the accident transpired immediately in front of his
establishment. The ownership of the Lambingan se Kambingan is not material; the business
is registered in the name of his mother, but he explained that he owns the establishment (p.
5, tsn, June 20, 1991). Moreover, the testimony that the streetlights on his side of Aurora
Boulevard were on the night the accident transpired (p. 8) is not necessarily contradictory
to the testimony of Pfc. Ramos that there was a streetlight at the corner of Aurora
Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not
a heavy rain and the rain has stopped and he was outside his establishment at the time the
accident transpired (pp. 64-65, tsn, June 17, 1991). This was consistent with plaintiff's
testimony that it was no longer raining when she left Bistro La Conga (pp. 10-11, tsn, April
29, 1991). It was defendant Li who stated that it was raining all the way in an attempt to
explain why he was travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the
testimony of Pfc. Ramos that it was raining, he arrived at the scene only in response to a
telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no
substantial inconsistencies in Rodriguez's testimony that would impair the essential
integrity of his testimony or reflect on his honesty. We are compelled to affirm the trial
court's acceptance of the testimony of said eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Li's testimony was
peppered with so many inconsistencies leading us to conclude that his version of the
accident was merely adroitly crafted to provide a version, obviously self-serving, which
would exculpate him from any and all liability in the incident. Against Valenzuela's
corroborated claims, his allegations were neither backed up by other witnesses nor by the
circumstances proven in the course of trial. He claimed that he was driving merely at a
speed of 55 kph. when "out of nowhere he saw a dark maroon lancer right in front of him,
which was (the) plaintiff's car". He alleged that upon seeing this sudden "apparition" he put
on his brakes to no avail as the road was slippery.9

One will have to suspend disbelief in order to give credence to Li's disingenuous and
patently self-serving asseverations. The average motorist alert to road conditions will have
no difficulty applying the brakes to a car traveling at the speed claimed by Li. Given a light
rainfall, the visibility of the street, and the road conditions on a principal metropolitan
thoroughfare like Aurora Boulevard, Li would have had ample time to react to the changing
conditions of the road if he were alert - as every driver should be - to those conditions.
Driving exacts a more than usual toll on the senses. Physiological "fight or flight" 10
mechanisms are at work, provided such mechanisms were not dulled by drugs, alcohol,
exhaustion, drowsiness, etc.11 Li's failure to react in a manner which would have avoided
the accident could therefore have been only due to either or both of the two factors: 1) that
he was driving at a "very fast" speed as testified by Rodriguez; and 2) that he was under the
influence of alcohol.12 Either factor working independently would have diminished his
responsiveness to road conditions, since normally he would have slowed down prior to
reaching Valenzuela's car, rather than be in a situation forcing him to suddenly apply his
brakes. As the trial court noted (quoted with approval by respondent court):

Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the
incident, he said that while driving along Aurora Blvd., out of nowhere he saw a dark
maroon lancer right in front of him which was plaintiff's car, indicating, again, thereby that,
indeed, he was driving very fast, oblivious of his surroundings and the road ahead of him,
because if he was not, then he could not have missed noticing at a still far distance the
parked car of the plaintiff at the right side near the sidewalk which had its emergency lights
on, thereby avoiding forcefully bumping at the plaintiff who was then standing at the left
rear edge of her car.

Since, according to him, in his narration to the San Juan Police, he put on his brakes when
he saw the plaintiff's car in front of him, but that it failed as the road was wet and slippery,
this goes to show again, that, contrary to his claim, he was, indeed, running very fast. For,
were it otherwise, he could have easily completely stopped his car, thereby avoiding the
bumping of the plaintiff, notwithstanding that the road was wet and slippery. Verily, since,
if, indeed, he was running slow, as he claimed, at only about 55 kilometers per hour, then,
inspite of the wet and slippery road, he could have avoided hitting the plaintiff by the mere
expedient or applying his brakes at the proper time and distance.

It could not be true, therefore, as he now claims during his testimony, which is contrary to
what he told the police immediately after the accident and is, therefore, more believable,
that he did not actually step on his brakes but simply swerved a little to the right when he
saw the on-coming car with glaring headlights, from the opposite direction, in order to
avoid it.

For, had this been what he did, he would not have bumped the car of the plaintiff which
was properly parked at the right beside the sidewalk. And, it was not even necessary for him
to swerve a little to the right in order to safely avoid a collision with the on-coming car,
considering that Aurora Blvd. is a double lane avenue separated at the center by a dotted
white paint, and there is plenty of space for both cars, since her car was running at the right
lane going towards Manila on the on-coming car was also on its right lane going to Cubao.13

Having come to the conclusion that Li was negligent in driving his company-issued
Mitsubishi Lancer, the next question for us to determine is whether or not Valenzuela was
likewise guilty of contributory negligence in parking her car alongside Aurora Boulevard,
which entire area Li points out, is a no parking zone.

We agree with the respondent court that Valenzuela was not guilty of contributory
negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard to which he is required to
conform for his own protection.14 Based on the foregoing definition, the standard or act to
which, according to petitioner Li, Valenzuela ought to have conformed for her own
protection was not to park at all at any point of Aurora Boulevard, a no parking zone. We
cannot agree.

Courts have traditionally been compelled to recognize that an actor who is confronted with
an emergency is not to be held up to the standard of conduct normally applied to an
individual who is in no such situation. The law takes stock of impulses of humanity when
placed in threatening or dangerous situations and does not require the same standard of
thoughtful and reflective care from persons confronted by unusual and oftentimes
threatening conditions.15

Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an
individual who suddenly finds himself in a situation of danger and is required to act without
much time to consider the best means that may be adopted to avoid the impending danger,
is not guilty of negligence if he fails to undertake what subsequently and upon reflection
may appear to be a better solution, unless the emergency was brought by his own
negligence.17

Applying this principle to a case in which the victims in a vehicular accident swerved to the
wrong lane to avoid hitting two children suddenly darting into the street, we held, in Mc
Kee vs. Intermediate Appellate Court,18 that the driver therein, Jose Koh, "adopted the best
means possible in the given situation" to avoid hitting the children. Using the "emergency
rule" the Court concluded that Koh, in spite of the fact that he was in the wrong lane when
the collision with an oncoming truck occurred, was not guilty of negligence.19

While the emergency rule applies to those cases in which reflective thought, or the
opportunity to adequately weigh a threatening situation is absent, the conduct which is
required of an individual in such cases is dictated not exclusively by the suddenness of the
event which absolutely negates thoroughful care, but by the over-all nature of the
circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night
will not be faulted for stopping at a point which is both convenient for her to do so and
which is not a hazard to other motorists. She is not expected to run the entire boulevard in
search for a parking zone or turn on a dark street or alley where she would likely find no
one to help her. It would be hazardous for her not to stop and assess the emergency (simply
because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling
vehicle would be both a threat to her safety and to other motorists. In the instant case,
Valenzuela, upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed
that she had a flat tire. To avoid putting herself and other motorists in danger, she did what
was best under the situation. As narrated by respondent court: "She stopped at a lighted
place where there were people, to verify whether she had a flat tire and to solicit help if
needed. Having been told by the people present that her rear right tire was flat and that she
cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a
Toyota Corona Car."20 In fact, respondent court noted, Pfc. Felix Ramos, the investigator on
the scene of the accident confirmed that Valenzuela's car was parked very close to the
sidewalk.21 The sketch which he prepared after the incident showed Valenzuela's car partly
straddling the sidewalk, clear and at a convenient distance from motorists passing the right
lane of Aurora Boulevard. This fact was itself corroborated by the testimony of witness
Rodriguez.22

Under the circumstances described, Valenzuela did exercise the standard reasonably
dictated by the emergency and could not be considered to have contributed to the
unfortunate circumstances which eventually led to the amputation of one of her lower
extremities. The emergency which led her to park her car on a sidewalk in Aurora Boulevard
was not of her own making, and it was evident that she had taken all reasonable
precautions.

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on
the night of the accident. "Negligence, as it is commonly understood is conduct which
creates an undue risk of harm to others."23 It is the failure to observe that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury.24 We stressed, in Corliss vs. Manila Railroad Company,25 that
negligence is the want of care required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly
demonstrate that Li was grossly negligent in driving his Mitsubishi Lancer. It bears emphasis
that he was driving at a fast speed at about 2:00 A.M. after a heavy downpour had settled
into a drizzle rendering the street slippery. There is ample testimonial evidence on record to
show that he was under the influence of liquor. Under these conditions, his chances of
effectively dealing with changing conditions on the road were significantly lessened. As
Presser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for
the sudden appearance of obstacles and persons on the highway, and of other vehicles at
intersections, such as one who sees a child on the curb may be required to anticipate its
sudden dash into the street, and his failure to act properly when they appear may be found
to amount to negligence.26

Li's obvious unpreparedness to cope with the situation confronting him on the night of the
accident was clearly of his own making.

We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In
denying liability on the part of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's testimony, that the visit was in connection
with official matters. His functions as assistant manager sometimes required him to perform
work outside the office as he has to visit buyers and company clients, but he admitted that
on the night of the accident he came from BF Homes Paranaque he did not have "business
from the company" (pp. 25-26, ten, Sept. 23, 1991). The use of the company car was partly
required by the nature of his work, but the privilege of using it for non-official business is a
"benefit", apparently referring to the fringe benefits attaching to his position.

Under the civil law, an employer is liable for the negligence of his employees in the
discharge of their respective duties, the basis of which liability is not respondeat superior,
but the relationship of pater familias, which theory bases the liability of the master
ultimately on his own negligence and not on that of his servant (Cuison v. Norton and
Harrison Co., 55 Phil. 18). Before an employer may be held liable for the negligence of his
employee, the act or omission which caused damage must have occurred while an
employee was in the actual performance of his assigned tasks or duties (Francis High School
vs. Court of Appeals, 194 SCRA 341). In defining an employer's liability for the acts done
within the scope of the employee's assigned tasks, the Supreme Court has held that this
includes any act done by an employee, in furtherance of the interests of the employer or for
the account of the employer at the time of the infliction of the injury or damage (Filamer
Christian Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is
expected to impose upon its employees the necessary discipline called for in the
performance of any act "indispensable to the business and beneficial to their employer" (at
p. 645).

In light of the foregoing, We are unable to sustain the trial court's finding that since
defendant Li was authorized by the company to use the company car "either officially or
socially or even bring it home", he can be considered as using the company car in the
service of his employer or on the occasion of his functions. Driving the company car was not
among his functions as assistant manager; using it for non-official purposes would appear to
be a fringe benefit, one of the perks attached to his position. But to impose liability upon
the employer under Article 2180 of the Civil Code, earlier quoted, there must be a showing
that the damage was caused by their employees in the service of the employer or on the
occasion of their functions. There is no evidence that Richard Li was at the time of the
accident performing any act in furtherance of the company's business or its interests, or at
least for its benefit. The imposition of solidary liability against defendant Alexander
Commercial Corporation must therefore fail.27

We agree with the respondent court that the relationship in question is not based on the
principle of respondeat superior, which holds the master liable for acts of the servant, but
that of pater familias, in which the liability ultimately falls upon the employer, for his failure
to exercise the diligence of a good father of the family in the selection and supervision of his
employees. It is up to this point, however, that our agreement with the respondent court
ends. Utilizing the bonus pater familias standard expressed in Article 2180 of the Civil Code,
28 we are of the opinion that Li's employer, Alexander Commercial, Inc. is jointly and
solidarily liable for the damage caused by the accident of June 24, 1990.

First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent
court has placed undue reliance, dealt with the subject of a school and its teacher's
supervision of students during an extracurricular activity. These cases now fall under the
provision on special parental authority found in Art. 218 of the Family Code which generally
encompasses all authorized school activities, whether inside or outside school premises.

Second, the employer's primary liability under the concept of pater familias embodied by
Art 2180 (in relation to Art. 2176) of the Civil Code is quasi-delictual or tortious in character.
His liability is relieved on a showing that he exercised the diligence of a good father of the
family in the selection and supervision of its employees. Once evidence is introduced
showing that the employer exercised the required amount of care in selecting its
employees, half of the employer's burden is overcome. The question of diligent supervision,
however, depends on the circumstances of employment.

Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of
its employee during the performance of the latter's assigned tasks would be enough to
relieve him of the liability imposed by Article 2180 in relation to Article 2176 of the Civil
Code. The employer is not expected to exercise supervision over either the employee's
private activities or during the performance of tasks either unsanctioned by the former or
unrelated to the employee's tasks. The case at bench presents a situation of a different
character, involving a practice utilized by large companies with either their employees of
managerial rank or their representatives.

It is customary for large companies to provide certain classes of their employees with
courtesy vehicles. These company cars are either wholly owned and maintained by the
company itself or are subject to various plans through which employees eventually acquire
their vehicles after a given period of service, or after paying a token amount. Many
companies provide liberal "car plans" to enable their managerial or other employees of rank
to purchase cars, which, given the cost of vehicles these days, they would not otherwise be
able to purchase on their own.

Under the first example, the company actually owns and maintains the car up to the point
of turnover of ownership to the employee; in the second example, the car is really owned
and maintained by the employee himself. In furnishing vehicles to such employees, are
companies totally absolved of responsibility when an accident involving a company-issued
car occurs during private use after normal office hours?

Most pharmaceutical companies, for instance, which provide cars under the first plan,
require rigorous tests of road worthiness from their agents prior to turning over the car
(subject of company maintenance) to their representatives. In other words, like a good
father of a family, they entrust the company vehicle only after they are satisfied that the
employee to whom the car has been given full use of the said company car for company or
private purposes will not be a threat or menace to himself, the company or to others. When
a company gives full use and enjoyment of a company car to its employee, it in effect
guarantees that it is, like every good father, satisfied that its employee will use the privilege
reasonably and responsively.

In the ordinary course of business, not all company employees are given the privilege of
using a company-issued car. For large companies other than those cited in the example of
the preceding paragraph, the privilege serves important business purposes either related to
the image of success an entity intends to present to its clients and to the public in general,
or - for practical and utilitarian reasons - to enable its managerial and other employees of
rank or its sales agents to reach clients conveniently. In most cases, providing a company
car serves both purposes. Since important business transactions and decisions may occur at
all hours in all sorts of situations and under all kinds of guises, the provision for the
unlimited use of a company car therefore principally serves the business and goodwill of a
company and only incidentally the private purposes of the individual who actually uses the
car, the managerial employee or company sales agent. As such, in providing for a company
car for business use and/or for the purpose of furthering the company's image, a company
owes a responsibility to the public to see to it that the managerial or other employees to
whom it entrusts virtually unlimited use of a company issued car are able to use the
company issue capably and responsibly.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his
testimony before the trial court, he admitted that his functions as Assistant Manager did
not require him to scrupulously keep normal office hours as he was required quite often to
perform work outside the office, visiting prospective buyers and contacting and meeting
with company clients. 30 These meetings, clearly, were not strictly confined to routine
hours because, as a managerial employee tasked with the job of representing his company
with its clients, meetings with clients were both social as well as work-related functions. The
service car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well
as the corporation - to put up the front of a highly successful entity, increasing the latter's
goodwill before its clientele. It also facilitated meeting between Li and its clients by
providing the former with a convenient mode of travel.

Moreover, Li's claim that he happened to be on the road on the night of the accident
because he was coming from a social visit with an officemate in Paranaque was a bare
allegation which was never corroborated in the court below. It was obviously self-serving.
Assuming he really came from his officemate's place, the same could give rise to speculation
that he and his officemate had just been from a work-related function, or they were
together to discuss sales and other work related strategies.

In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it
exercised the care and diligence of a good father of the family in entrusting its company car
to Li. No allegations were made as to whether or not the company took the steps necessary
to determine or ascertain the driving proficiency and history of Li, to whom it gave full and
unlimited use of a company car.31 Not having been able to overcome the burden of
demonstrating that it should be absolved of liability for entrusting its company car to Li, said
company, based on the principle of bonus pater familias, ought to be jointly and severally
liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the
accident.

Finally, we find no reason to overturn the amount of damages awarded by the respondent
court, except as to the amount of moral damages. In the case of moral damages, while the
said damages are not intended to enrich the plaintiff at the expense of a defendant, the
award should nonetheless be commensurate to the suffering inflicted. In the instant case
we are of the opinion that the reduction in moral damages from an amount of
P1,000,000.00 to P800,000,00 by the Court of Appeals was not justified considering the
nature of the resulting damage and the predictable sequelae of the injury.

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of
her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in
her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have
to be replaced and re-adjusted to changes in the size of her lower limb effected by the
biological changes of middle-age, menopause and aging. Assuming she reaches menopause,
for example, the prosthetic will have to be adjusted to respond to the changes in bone
resulting from a precipitate decrease in calcium levels observed in the bones of all post-
menopausal women. In other words, the damage done to her would not only be permanent
and lasting, it would also be permanently changing and adjusting to the physiologic changes
which her body would normally undergo through the years. The replacements, changes,
and adjustments will require corresponding adjustive physical and occupational therapy. All
of these adjustments, it has been documented, are painful.

The foregoing discussion does not even scratch the surface of the nature of the resulting
damage because it would be highly speculative to estimate the amount of psychological
pain, damage and injury which goes with the sudden severing of a vital portion of the
human body. A prosthetic device, however technologically advanced, will only allow a
reasonable amount of functional restoration of the motor functions of the lower limb. The
sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.

As the amount of moral damages are subject to this Court's discretion, we are of the
opinion that the amount of P1,000,000.00 granted by the trial court is in greater accord
with the extent and nature of the injury - physical and psychological - suffered by
Valenzuela as a result of Li's grossly negligent driving of his Mitsubishi Lancer in the early
morning hours of the accident.

WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with
the effect of REINSTATING the judgment of the Regional Trial Court.

SO ORDERED.

Padilla, Bellosillo and Hermosisima, Jr., JJ., concur.


Separate Opinions

VITUG, J., concurring:

Pursuant to Article 21801 of the Civil Code that acknowledges responsibility under a
relationship of patria potestas, a person may be held accountable not only for his own
direct culpable act or negligence but also for those of others albeit predicated on his own
supposed failure to exercise due care in his supervisory authority and functions. In the case
of an employer, that vicarious liability attaches only when the tortious conduct of the
employee relates to, or is in the course of, his employment. The question to ask should be
whether, at the time of the damage or injury, the employee is engaged in the affairs or
concerns of the employer or, independently, in that of his own. While an employer incurs
no liability when an employee's conduct, act or omission is beyond the range of
employment, a minor deviation from the assigned task of an employee, however, does not
affect the liability of an employer.

6. RES IPSA LOQUITUR

a.) Rakes VS Atlantic
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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, & Thimas Kepner for appellee.

TRACEY, J.:

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
therafter 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
Trail, 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 symphaty 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 hiss 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 shinking 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., 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.

Found 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
collission at sea. Article 827 of the Code of Commerce is as follows:

If both vessels may be blamed for the collission, 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 dimetrically 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.

Carson, J., concurs.

b.) Taylor VS Manila Electric Railroad
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4977 March 22, 1910

DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

W. H. Lawrence, for appellant.
W. L. Wright, for appellee.

CARSON, J.:

An action to recover damages for the loss of an eye and other injuries, instituted by David
Taylor, a minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an
electric light system in the city of Manila. Its power plant is situated at the eastern end of a
small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The
power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at
the westerly end of the island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15
years of age, the son of a mechanical engineer, more mature than the average boy of his
age, and having considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12
years of age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one
Murphy, an employee of the defendant, who and promised to make them a cylinder for a
miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys,
impelled apparently by youthful curiosity and perhaps by the unusual interest which both
seem to have taken in machinery, spent some time in wandering about the company's
premises. The visit was made on a Sunday afternoon, and it does not appear that they saw
or spoke to anyone after leaving the power house where they had asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal,
they walked across the open space in the neighborhood of the place where the company
dumped in the cinders and ashes from its furnaces. Here they found some twenty or thirty
brass fulminating caps scattered on the ground. These caps are approximately of the size
and appearance of small pistol cartridges and each has attached to it two long thin wires by
means of which it may be discharged by the use of electricity. They are intended for use in
the explosion of blasting charges of dynamite, and have in themselves a considerable
explosive power. After some discussion as to the ownership of the caps, and their right to
take them, the boys picked up all they could find, hung them on stick, of which each took
end, and carried them home. After crossing the footbridge, they met a little girl named
Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the wires into
an electric light socket and obtained no result. They next tried to break the cap with a stone
and failed. Manuel looked for a hammer, but could not find one. Then they opened one of
the caps with a knife, and finding that it was filled with a yellowish substance they got
matches, and David held the cap while Manuel applied a lighted match to the contents. An
explosion followed, causing more or less serious injuries to all three. Jessie, who when the
boys proposed putting a match to the contents of the cap, became frightened and started
to run away, received a slight cut in the neck. Manuel had his hand burned and wounded,
and David was struck in the face by several particles of the metal capsule, one of which
injured his right eye to such an extent as to the necessitate its removal by the surgeons who
were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the
defendant's premises, nor how long they had been there when the boys found them. It
appears, however, that some months before the accident, during the construction of the
defendant's plant, detonating caps of the same size and kind as those found by the boys
were used in sinking a well at the power plant near the place where the caps were found;
and it also appears that at or about the time when these caps were found, similarly caps
were in use in the construction of an extension of defendant's street car line to Fort William
McKinley. The caps when found appeared to the boys who picked them up to have been
lying for a considerable time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be thrown upon the rubbish
heap.

No measures seems to have been adopted by the defendant company to prohibit or
prevent visitors from entering and walking about its premises unattended, when they felt
disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true that
children in their play sometimes crossed the foot bridge to the islands;" and, we may add,
roamed about at will on the uninclosed premises of the defendant, in the neighborhood of
the place where the caps were found. There is evidence that any effort ever was made to
forbid these children from visiting the defendant company's premises, although it must be
assumed that the company or its employees were aware of the fact that they not
infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of
the interisland transports. Later he took up work in his father's office, learning mechanical
drawing and mechanical engineering. About a month after his accident he obtained
employment as a mechanical draftsman and continued in that employment for six months
at a salary of P2.50 a day; and it appears that he was a boy of more than average
intelligence, taller and more mature both mentally and physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively
established by the evidence of record, and are substantially admitted by counsel. The only
questions of fact which are seriously disputed are plaintiff's allegations that the caps which
were found by plaintiff on defendant company's premises were the property of the
defendant, or that they had come from its possession and control, and that the company or
some of its employees left them exposed on its premises at the point where they were
found.

The evidence in support of these allegations is meager, and the defendant company,
apparently relying on the rule of law which places the burden of proof of such allegations
upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his
proof. We think, however, that plaintiff's evidence is sufficient to sustain a finding in accord
with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less
extensively, on the McKinley extension of the defendant company's track; that some of
these caps were used in blasting a well on the company's premises a few months before the
accident; that not far from the place where the caps were found the company has a
storehouse for the materials, supplies and so forth, used by it in its operations as a street
railway and a purveyor of electric light; and that the place, in the neighborhood of which
the caps were found, was being used by the company as a sort of dumping ground for ashes
and cinders. Fulminating caps or detonators for the discharge by electricity of blasting
charges by dynamite are not articles in common use by the average citizen, and under all
the circumstances, and in the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they were found by the
plaintiff on defendant's premises fairly justifies the inference that the defendant company
was either the owner of the caps in question or had the caps under its possession and
control. We think also that the evidence tends to disclose that these caps or detonators
were willfully and knowingly thrown by the company or its employees at the spot where
they were found, with the expectation that they would be buried out of the sight by the
ashes which it was engaged in dumping in that neighborhood, they being old and perhaps
defective; and, however this may be, we are satisfied that the evidence is sufficient to
sustain a finding that the company or some of its employees either willfully or through an
oversight left them exposed at a point on its premises which the general public, including
children at play, where not prohibited from visiting, and over which the company knew or
ought to have known that young boys were likely to roam about in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on
which these conclusions are based by intimidating or rather assuming that the blasting work
on the company's well and on its McKinley extension was done by contractors. It was
conclusively proven, however, that while the workman employed in blasting the well was
regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well
directly and immediately under the supervision and control of one of defendant company's
foremen, and there is no proof whatever in the record that the blasting on the McKinley
extension was done by independent contractors. Only one witness testified upon this point,
and while he stated that he understood that a part of this work was done by contract, he
could not say so of his own knowledge, and knew nothing of the terms and conditions of
the alleged contract, or of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps were more or less extensively
employed on work done by the defendant company's directions and on its behalf, we think
that the company should have introduced the necessary evidence to support its contention
if it wished to avoid the not unreasonable inference that it was the owner of the material
used in these operations and that it was responsible for tortious or negligent acts of the
agents employed therein, on the ground that this work had been intrusted to independent
contractors as to whose acts the maxim respondent superior should not be applied. If the
company did not in fact own or make use of caps such as those found on its premises, as
intimated by counsel, it was a very simple matter for it to prove that fact, and in the
absence of such proof we think that the other evidence in the record sufficiently establishes
the contrary, and justifies the court in drawing the reasonable inference that the caps found
on its premises were its property, and were left where they were found by the company or
some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor,
upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903,
and 1908 of that code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 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.

ART. 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 damages caused
by their employees in the service of the branches in which the latter may be employed or
on account of their duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.

ART. 1908 The owners shall also be liable for the damage caused —

1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.

Counsel for the defendant and appellant rests his appeal strictly upon his contention that
the facts proven at the trial do not established the liability of the defendant company under
the provisions of these articles, and since we agree with this view of the case, it is not
necessary for us to consider the various questions as to form and the right of action
(analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep.,
359), which would, perhaps, be involved in a decision affirming the judgment of the court
below.

We agree with counsel for appellant that under the Civil Code, as under the generally
accepted doctrine in the United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery, must establish by competent
evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real
difficulty arising in the application of these principles to the particular facts developed in the
case under consideration.

It is clear that the accident could not have happened and not the fulminating caps been left
exposed at the point where they were found, or if their owner had exercised due care in
keeping them in an appropriate place; but it is equally clear that plaintiff would not have
been injured had he not, for his own pleasure and convenience, entered upon the
defendant's premises, and strolled around thereon without the express permission of the
defendant, and had he not picked up and carried away the property of the defendant which
he found on its premises, and had he not thereafter deliberately cut open one of the caps
and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his
entry upon defendant company's premises, and the intervention of his action between the
negligent act of defendant in leaving the caps exposed on its premises and the accident
which resulted in his injury should not be held to have contributed in any wise to the
accident, which should be deemed to be the direct result of defendant's negligence in
leaving the caps exposed at the place where they were found by the plaintiff, and this latter
the proximate cause of the accident which occasioned the injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of
the courts of last resort in the United States in the cases known as the "Torpedo" and
"Turntable" cases, and the cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for
an injury received by an infant of tender years, who from mere idle curiosity, or for the
purposes of amusement, enters upon the railroad company's premises, at a place where the
railroad company knew, or had good reason to suppose, children would be likely to come,
and there found explosive signal torpedoes left unexposed by the railroad company's
employees, one of which when carried away by the visitor, exploded and injured him; or
where such infant found upon the premises a dangerous machine, such as a turntable, left
in such condition as to make it probable that children in playing with it would be exposed to
accident or injury therefrom and where the infant did in fact suffer injury in playing with
such machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner
of the premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal
question was whether a railroad company was liable for in injury received by an infant while
upon its premises, from idle curiosity, or for purposes of amusement, if such injury was,
under circumstances, attributable to the negligence of the company), the principles on
which these cases turn are that "while a railroad company is not bound to the same degree
of care in regard to mere strangers who are unlawfully upon its premises that it owes to
passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries
arising from its negligence or from its tortious acts;" and that "the conduct of an infant of
tender years is not to be judged by the same rule which governs that of adult. While it is the
general rule in regard to an adult that to entitle him to recover damages for an injury
resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a
child is according to his maturity and capacity only, and this is to be determined in each case
by the circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and
sharply criticized in several state courts, and the supreme court of Michigan in the case of
Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the
Turntable cases, especially that laid down in Railroad Company vs. Stout, in a very able
decision wherein it held, in the language of the syllabus: (1) That the owner of the land is
not liable to trespassers thereon for injuries sustained by them, not due to his wanton or
willful acts; (2) that no exception to this rule exists in favor of children who are injured by
dangerous machinery naturally calculated to attract them to the premises; (3) that an
invitation or license to cross the premises of another can not be predicated on the mere
fact that no steps have been taken to interfere with such practice; (4) that there is no
difference between children and adults as to the circumstances that will warrant the
inference of an invitation or a license to enter upon another's premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in
by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154
Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New
Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing
and approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1
Q. B., 29, 35, 36), lay down the rule in these cases in accord with that announced in the
Railroad Company vs. Stout (supra), and the Supreme Court of the United States, in a
unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs.
McDonal and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an
exhaustive and critical analysis and review of many of the adjudged cases, both English and
American, formally declared that it adhered "to the principles announced in the case of
Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and
visited the defendant's premises, without defendant's express permission or invitation, and
while there, was by accident injured by falling into a burning slack pile of whose existence
he had no knowledge, but which had been left by defendant on its premises without any
fence around it or anything to give warning of its dangerous condition, although defendant
knew or had reason the interest or curiosity of passers-by. On these facts the court held
that the plaintiff could not be regarded as a mere trespasser, for whose safety and
protection while on the premises in question, against the unseen danger referred to, the
defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles
involved to the facts in that case, because what is said there is strikingly applicable in the
case at bar, and would seem to dispose of defendant's contention that, the plaintiff in this
case being a trespasser, the defendant company owed him no duty, and in no case could be
held liable for injuries which would not have resulted but for the entry of plaintiff on
defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case
now before us, they require us to hold that the defendant was guilty of negligence in
leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could
have forbidden all persons from coming to its coal mine for purposes merely of curiosity
and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age,
to visit its mine, and witness its operation. It knew that the usual approach to the mine was
by a narrow path skirting its slack pit, close to its depot building, at which the people of the
village, old and young, would often assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft house in the immediate vicinity of the
slack pit. The slightest regard for the safety of these children would have suggested that
they were in danger from being so near a pit, beneath the surface of which was concealed
(except when snow, wind, or rain prevailed) a mass of burning coals into which a child might
accidentally fall and be burned to death. Under all the circumstances, the railroad company
ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the
mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for
whose protection it was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited
with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises, would probably be attracted
by their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means
of his instinct which he can not resist, and putting him there by manual force?" What
difference, in reason we may observe in this case, is there between an express license to
the children of this village to visit the defendant's coal mine, in the vicinity of its slack pile,
and an implied license, resulting from the habit of the defendant to permit them, without
objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring it the
case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence,
volume 1, page 305, note, well says: "It would be a barbarous rule of law that would make
the owner of land liable for setting a trap thereon, baited with stinking meat, so that his
neighbor's dog attracted by his natural instinct, might run into it and be killed, and which
would exempt him from liability for the consequence of leaving exposed and unguarded on
his land a dangerous machine, so that his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of
Powers vs. Harlow (53 Mich., 507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied
invitation to visit the premises of another, says:

In the case of young children, and other persons not fully sui juris, an implied license might
sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to gather for that purpose, may
be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw
away upon his premises, near the common way, things tempting to children, the same
implication should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the
cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is
not less cogent and convincing in this jurisdiction than in that wherein those cases
originated. Children here are actuated by similar childish instincts and impulses. Drawn by
curiosity and impelled by the restless spirit of youth, boys here as well as there will usually
be found whenever the public is permitted to congregate. The movement of machinery, and
indeed anything which arouses the attention of the young and inquiring mind, will draw
them to the neighborhood as inevitably as does the magnet draw the iron which comes
within the range of its magnetic influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which the public are expressly or
impliedly permitted to enter or upon which the owner knows or ought to know children are
likely to roam about for pastime and in play, " must calculate upon this, and take
precautions accordingly." In such cases the owner of the premises can not be heard to say
that because the child has entered upon his premises without his express permission he is a
trespasser to whom the owner owes no duty or obligation whatever. The owner's failure to
take reasonable precautions to prevent the child from entering his premises at a place
where he knows or ought to know that children are accustomed to roam about of to which
their childish instincts and impulses are likely to attract them is at least equivalent to an
implied license to enter, and where the child does enter under such conditions the owner's
failure to take reasonable precautions to guard the child against injury from unknown or
unseen dangers, placed upon such premises by the owner, is clearly a breach of duty,
responsible, if the child is actually injured, without other fault on its part than that it had
entered on the premises of a stranger without his express invitation or permission. To hold
otherwise would be expose all the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occupants of land upon which they might
naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a
man has a right to do what will with his own property or that children should be kept under
the care of their parents or guardians, so as to prevent their entering on the premises of
others is of sufficient weight to put in doubt. In this jurisdiction as well as in the United
States all private property is acquired and held under the tacit condition that it shall not be
so used as to injure the equal rights and interests of the community (see U. S. vs. Toribio,1
No. 5060, decided January 26, 1910), and except as to infants of very tender years it would
be absurd and unreasonable in a community organized as is that in which we lived to hold
that parents or guardian are guilty of negligence or imprudence in every case wherein they
permit growing boys and girls to leave the parental roof unattended, even if in the event of
accident to the child the negligence of the parent could in any event be imputed to the child
so as to deprive it a right to recover in such cases — a point which we neither discuss nor
decide.

But while we hold that the entry of the plaintiff upon defendant's property without
defendant's express invitation or permission would not have relieved defendant from
responsibility for injuries incurred there by plaintiff, without other fault on his part, if such
injury were attributable to the negligence of the defendant, we are of opinion that under all
the circumstances of this case the negligence of the defendant in leaving the caps exposed
on its premises was not the proximate cause of the injury received by the plaintiff, which
therefore was not, properly speaking, "attributable to the negligence of the defendant,"
and, on the other hand, we are satisfied that plaintiffs action in cutting open the detonating
cap and putting match to its contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly
responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of
plaintiff's youth the intervention of his action between the negligent act of the defendant in
leaving the caps exposed on its premises and the explosion which resulted in his injury
should not be held to have contributed in any wise to the accident; and it is because we can
not agree with this proposition, although we accept the doctrine of the Turntable and
Torpedo cases, that we have thought proper to discuss and to consider that doctrine at
length in this decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the
general rule in regard to an adult that to entitle him to recover damages for an injury
resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a
child is according to his maturity and capacity only, and this is to be determined in each case
by the circumstances of the case." As we think we have shown, under the reasoning on
which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve
defendant of responsibility for injuries resulting from its negligence can be attributed to the
plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant's
uninclosed premises without express permission or invitation' but it is wholly different
question whether such youth can be said to have been free from fault when he willfully and
deliberately cut open the detonating cap, and placed a match to the contents, knowing, as
he undoubtedly did, that his action would result in an explosion. On this point, which must
be determined by "the particular circumstances of this case," the doctrine laid down in the
Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation
that in all of the "Torpedo" and analogous cases which our attention has been directed, the
record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of
such tender years that they were held not to have the capacity to understand the nature or
character of the explosive instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more
mature both mentally and physically than the average boy of his age; he had been to sea as
a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the
injury was incurred; and the record discloses throughout that he was exceptionally well
qualified to take care of himself. The evidence of record leaves no room for doubt that,
despite his denials on the witness stand, he well knew the explosive character of the cap
with which he was amusing himself. The series of experiments made by him in his attempt
to produce an explosion, as described by the little girl who was present, admit of no other
explanation. His attempt to discharge the cap by the use of electricity, followed by his
efforts to explode it with a stone or a hammer, and the final success of his endeavors
brought about by the application of a match to the contents of the caps, show clearly that
he knew what he was about. Nor can there be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9
years of age, who was within him at the time when he put the match to the contents of the
cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the
explosion which might be expected from the ignition of the contents of the cap, and of
course he did not anticipate the resultant injuries which he incurred; but he well knew that
a more or less dangerous explosion might be expected from his act, and yet he willfully,
recklessly, and knowingly produced the explosion. It would be going far to say that
"according to his maturity and capacity" he exercised such and "care and caution" as might
reasonably be required of him, or that defendant or anyone else should be held civilly
responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity
to understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such
acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very
nature of things the question of negligence necessarily depends on the ability of the minor
to understand the character of his own acts and their consequences; and the age at which a
minor can be said to have such ability will necessarily depends of his own acts and their
consequences; and at the age at which a minor can be said to have such ability will
necessarily vary in accordance with the varying nature of the infinite variety of acts which
may be done by him. But some idea of the presumed capacity of infants under the laws in
force in these Islands may be gathered from an examination of the varying ages fixed by our
laws at which minors are conclusively presumed to be capable of exercising certain rights
and incurring certain responsibilities, though it can not be said that these provisions of law
are of much practical assistance in cases such as that at bar, except so far as they illustrate
the rule that the capacity of a minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the Penal Code a minor over
fifteen years of age is presumed to be capable of committing a crime and is to held
criminally responsible therefore, although the fact that he is less than eighteen years of age
will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9).
At 10 years of age a child may, under certain circumstances, choose which parent it prefers
to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a
guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males
of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G.
O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to
be sensible of the danger to which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that his age and his experience
qualified him to understand and appreciate the necessity for the exercise of that degree of
caution which would have avoided the injury which resulted from his own deliberate act;
and that the injury incurred by him must be held to have been the direct and immediate
result of his own willful and reckless act, so that while it may be true that these injuries
would not have been incurred but for the negligence act of the defendant in leaving the
caps exposed on its premises, nevertheless plaintiff's own act was the proximate and
principal cause of the accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur
sentire. (Digest, book 50, tit. 17 rule 203.)

The Patidas 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.)

According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down
the law touching contributory negligence in this jurisdiction, nevertheless, the
interpretation placed upon its provisions by the supreme court of Spain, and by this court in
the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the
plaintiff in the case at bar the right to recover damages from the defendant, in whole or in
part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia
Civil, 391), is directly in point. In that case the court 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 there exists the relation
of cause and effect; but if the injury produced should not be the result of acts or omissions
of a third party, the latter has no obligation to repair the same, although such acts or
omission were imprudent or unlawful, and much less when it is shown that the immediate
cause of the injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault
or negligence is not sufficient without proof that it, and no other cause, gave rise to the
damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his
Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when
between it and the damage there exists the relation of cause and effect; but if the damage
caused does not arise from the acts or omissions of a third person, there is no obligation to
make good upon the latter, even though such acts or omissions be imprudent or illegal, and
much less so when it is shown that the immediate cause of the damage has been the
recklessness of the injured party himself.

And again —

In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898, have
especially supported the principle, the first setting forth in detail the necessary points of the
proof, which are two: An act or omission on the part of the person who is to be charged
with the liability, and the production of the damage by said act or omission.

This includes, by inference, the establishment of a relation of cause or effect between the
act or omission and the damage; the latter must be the direct result of one of the first two.
As the decision of March 22, 1881, said, it is necessary that the damages result immediately
and directly from an act performed culpably and wrongfully; "necessarily presupposing a
legal ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it. (Scavoela,
Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely
settled in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific
Co. (supra), wherein we held that while "There are many cases (personal injury cases) was
exonerated," on the ground that "the negligence of the plaintiff was the immediate cause of
the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March,
1902, stated in Alcubilla's Index of that year); none of the cases decided by the supreme
court of Spain "define the effect to be given the negligence 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;" and in such cases we declared that law in this jurisdiction to require the
application of "the principle of proportional damages," but expressly and definitely denied
the right of recovery when the acts of the injured party were the immediate causes of the
accident.

The doctrine as laid down in that case is as follows:

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 made
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 to his own proper hurt. For instance, the cause of the accident under
review was the displacement of the crosspiece or the failure to replace it. This produces 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 through his act or omission of duty, that 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.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the
explosion, the accident which resulted in plaintiff's injury, was in his own act in putting a
match to the contents of the cap, and that having "contributed to the principal occurrence,
as one of its determining factors, he can not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up
upon defendant's premises the detonating caps, the property of defendant, and carrying
the relation of cause and effect between the negligent act or omission of the defendant in
leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the
explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the
part of an infant of very tender years would have no effect in relieving defendant of
responsibility, but whether in view of the well-known fact admitted in defendant's brief that
"boys are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff
should be deemed without fault in picking up the caps in question under all the
circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment
of the court below, without costs to either party in this instance, and ten days thereafter let
the record be returned to the court wherein it originated, where the judgment will be
entered in favor of the defendant for the costs in first instance and the complaint dismissed
without day. So ordered.

Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.

c.) Bernardo VS Legaspi
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9308 December 23, 1914

JUAN BERNARDO, plaintiff-appellant,
vs.
M. B. LEGASPI, defendant-appellee.

Roman de Jesus for appellant.
No appearance for appellee.


MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the city of Manila
dismissing the complaint on the merits filed in an action to recover damages for injuries
sustained by plaintiff's automobile by reason of defendant's negligence in causing a collision
between his automobile and that of plaintiff. The court in its judgment also dismissed a
cross-complaint filed by the defendant, praying for damages against the plaintiff on the
ground that the injuries sustained by the defendant's automobile in the collision referred
to, as well as those to plaintiff's machine, were caused by the negligence of the plaintiff in
handling his automobile.

The court found upon the evidence that both the plaintiff and the defendant were negligent
in handling their automobiles and that said negligence was of such a character and extent
on the part of both as to prevent either from recovering.1awphil.net

Upon the facts, as they appear of record, the judgment must be affirmed, as the evidence
clearly supports the decision of the trial court. The law applicable to the facts also requires
an affirmance of the judgment appealed from. Where the plaintiff in a negligence action, by
his own carelessness contributes to the principal occurrence, that is, to the accident, as one
of the determining causes thereof, he cannot recover. This is equally true of the defendant;
and as both of them, by their negligent acts, contributed to the determining cause of the
accident, neither can recover.

The judgment appealed from is affirmed, with costs against the appellant.itc-alf

Arellano, C.J., Torres, Johnson, Carson, Trent and Araullo, JJ., concur.

d.) Caltex VS Sps. Africa
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-12986 March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG,
petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-
appellees.

Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

This case is before us on a petition for review of the decision of the Court of Appeals, which
affirmed that of the Court of First Instance of Manila dismissing petitioners' second
amended complaint against respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that
in the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the
corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being
hosed from a tank truck into the underground storage, right at the opening of the receiving
tank where the nozzle of the hose was inserted. The fire spread to and burned several
neighboring houses, including the personal properties and effects inside them. Their
owners, among them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo
Boquiren, the first as alleged owner of the station and the second as its agent in charge of
operation. Negligence on the part of both of them was attributed as the cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence
and that respondents had exercised due care in the premises and with respect to the
supervision of their employees.

The first question before Us refers to the admissibility of certain reports on the fire
prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of the
Armed Forces of the Philippines. Portions of the first two reports are as follows:

1. Police Department report: —

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was
transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the
Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City,
an unknown Filipino lighted a cigarette and threw the burning match stick near the main
valve of the said underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick
action of Leandro Flores in pulling off the gasoline hose connecting the truck with the
underground tank prevented a terrific explosion. However, the flames scattered due to the
hose from which the gasoline was spouting. It burned the truck and the following
accessorias and residences.

2. The Fire Department report: —

In connection with their allegation that the premises was (sic) subleased for the installation
of a coca-cola and cigarette stand, the complainants furnished this Office a copy of a
photograph taken during the fire and which is submitted herewith. it appears in this picture
that there are in the premises a coca-cola cooler and a rack which according to information
gathered in the neighborhood contained cigarettes and matches, installed between the
gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales
regarding the history of the gasoline station and what the chief of the fire department had
told him on the same subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and
hence inadmissible. This ruling is now assigned as error. It is contended: first, that said
reports were admitted by the trial court without objection on the part of respondents;
secondly, that with respect to the police report (Exhibit V-Africa) which appears signed by a
Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness
but respondents waived their right to cross-examine him although they had the opportunity
to do so; and thirdly, that in any event the said reports are admissible as an exception to the
hearsay rule under section 35 of Rule 123, now Rule 130.

The first contention is not borne out by the record. The transcript of the hearing of
September 17, 1953 (pp. 167-170) shows that the reports in question, when offered as
evidence, were objected to by counsel for each of respondents on the ground that they
were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the
court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the
admission of the others, including the disputed ones, carried no such explanation.

On the second point, although Detective Capacillo did take the witness stand, he was not
examined and he did not testify as to the facts mentioned in his alleged report (signed by
Detective Zapanta). All he said was that he was one of those who investigated "the location
of the fire and, if possible, gather witnesses as to the occurrence, and that he brought the
report with him. There was nothing, therefore, on which he need be cross-examined; and
the contents of the report, as to which he did not testify, did not thereby become
competent evidence. And even if he had testified, his testimony would still have been
objectionable as far as information gathered by him from third persons was concerned.

Petitioners maintain, however, that the reports in themselves, that is, without further
testimonial evidence on their contents, fall within the scope of section 35, Rule 123, which
provides that "entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein stated."

There are three requisites for admissibility under the rule just mentioned: (a) that the entry
was made by a public officer, or by another person specially enjoined by law to do so; (b)
that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and (c) that the public officer
or other person had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information (Moran, Comments on the Rules
of Court, Vol. 3 [1957] p. 398).

Of the three requisites just stated, only the last need be considered here. Obviously the
material facts recited in the reports as to the cause and circumstances of the fire were not
within the personal knowledge of the officers who conducted the investigation. Was
knowledge of such facts, however, acquired by them through official information? As to
some facts the sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire occurred; to Leandro
Flores, driver of the tank truck from which gasoline was being transferred at the time to the
underground tank of the station; and to respondent Mateo Boquiren, who could not,
according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information" acquired by the officers who prepared the reports, the
persons who made the statements not only must have personal knowledge of the facts
stated but must have the duty to give such statements for record.1

The reports in question do not constitute an exception to the hearsay rule; the facts stated
therein were not acquired by the reporting officers through official information, not having
been given by the informants pursuant to any duty to do so.

The next question is whether or not, without proof as to the cause and origin of the fire, the
doctrine of res ipsa loquitur should apply so as to presume negligence on the part of
appellees. Both the trial court and the appellate court refused to apply the doctrine in the
instant case on the grounds that "as to (its) applicability ... in the Philippines, there seems to
he nothing definite," and that while the rules do not prohibit its adoption in appropriate
cases, "in the case at bar, however, we find no practical use for such doctrine." The question
deserves more than such summary dismissal. The doctrine has actually been applied in this
jurisdiction, in the case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No.
3240-R, September 20, 1949), wherein the decision of the Court of Appeals was penned by
Mr. Justice J.B.L. Reyes now a member of the Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were
loading grass between the municipalities of Bay and Calauan, in the province of Laguna,
with clear weather and without any wind blowing, an electric transmission wire, installed
and maintained by the defendant Philippine Power and Development Co., Inc. alongside the
road, suddenly parted, and one of the broken ends hit the head of the plaintiff as he was
about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried
by the wire and was knocked unconscious to the ground. The electric charge coursed
through his body and caused extensive and serious multiple burns from skull to legs, leaving
the bone exposed in some parts and causing intense pain and wounds that were not
completely healed when the case was tried on June 18, 1947, over one year after the
mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show
any specific act of negligence, but the appellate court overruled the defense under the
doctrine of res ipsa loquitur. The court said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellant on
its defense. While it is the rule, as contended by the appellant, that in case of
noncontractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to
establish that the proximate cause of his injury was the negligence of the defendant, it is
also a recognized principal that "where the thing which caused injury, without fault of the
injured person, is under the exclusive control of the defendant and the injury is such as in
the ordinary course of things does not occur if he having such control use proper care, it
affords reasonable evidence, in the absence of the explanation, that the injury arose from
defendant's want of care."

And the burden of evidence is shifted to him to establish that he has observed due care and
diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is
known by the name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly
applicable to the case at bar, where it is unquestioned that the plaintiff had every right to
be on the highway, and the electric wire was under the sole control of defendant company.
In the ordinary course of events, electric wires do not part suddenly in fair weather and
injure people, unless they are subjected to unusual strain and stress or there are defects in
their installation, maintenance and supervision; just as barrels do not ordinarily roll out of
the warehouse windows to injure passersby, unless some one was negligent. (Byrne v.
Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that rule).
Consequently, in the absence of contributory negligence (which is admittedly not present),
the fact that the wire snapped suffices to raise a reasonable presumption of negligence in
its installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if
there are any facts inconsistent with negligence, it is for the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding
on the Supreme Court, but we do not consider this a reason for not applying the particular
doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in
the storage and sale of which extreme care must be taken. On the other hand, fire is not
considered a fortuitous event, as it arises almost invariably from some act of man. A case
strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171
So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was
leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred from the tank wagon,
also operated by the Shell Petroleum Corporation, to the underground tank of the station, a
fire started with resulting damages to the building owned by Jones. Alleging that the
damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporation
for the recovery of that amount. The judge of the district court, after hearing the testimony,
concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for
$427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground
the testimony failed to show with reasonable certainty any negligence on the part of the
Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court
for a Writ of Review which was granted, and the case is now before us for
decision.1äwphï1.ñët

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

Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of
the fire and the other relating to the spreading of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's building by the fire, no
witnesses were placed on the stand by the defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
established by the record that the filling station and the tank truck were under the control
of the defendant and operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank
attached to the filling station while it was being filled from the tank truck and while both
the tank and the truck were in charge of and being operated by the agents or employees of
the defendant, extended to the hose and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to
explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.

Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the ordinary course
of things does not happen if those who have its management or control use proper care, it
affords reasonable evidence, in absence of explanation by defendant, that the accident
arose from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the
courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been
applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v.
Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis
v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.

The principle enunciated in the aforequoted case applies with equal force here. The
gasoline station, with all its appliances, equipment and employees, was under the control of
appellees. A fire occurred therein and spread to and burned the neighboring houses. The
persons who knew or could have known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh.
X-1 Africa) the following appears:

Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained
of occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and
Antipolo. The location is within a very busy business district near the Obrero Market, a
railroad crossing and very thickly populated neighborhood where a great number of people
mill around t

until

gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this
constitute a secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete walls south
and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid
the flames from leaping over it in case of fire.

Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.

Although the soft drinks stand had been eliminated, this gasoline service station is also used
by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more,
adding another risk to the possible outbreak of fire at this already small but crowded
gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his
duties on the basis of his own personal observation of the facts reported, may properly be
considered as an exception to the hearsay rule. These facts, descriptive of the location and
objective circumstances surrounding the operation of the gasoline station in question,
strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on
their face they called for more stringent measures of caution than those which would satisfy
the standard of due diligence under ordinary circumstances. There is no more eloquent
demonstration of this than the statement of Leandro Flores before the police investigator.
Flores was the driver of the gasoline tank wagon who, alone and without assistance, was
transferring the contents thereof into the underground storage when the fire broke out. He
said: "Before loading the underground tank there were no people, but while the loading
was going on, there were people who went to drink coca-cola (at the coca-cola stand) which
is about a meter from the hole leading to the underground tank." He added that when the
tank was almost filled he went to the tank truck to close the valve, and while he had his
back turned to the "manhole" he, heard someone shout "fire."

Even then the fire possibly would not have spread to the neighboring houses were it not for
another negligent omission on the part of defendants, namely, their failure to provide a
concrete wall high enough to prevent the flames from leaping over it. As it was the concrete
wall was only 2-1/2 meters high, and beyond that height it consisted merely of galvanized
iron sheets, which would predictably crumple and melt when subjected to intense heat.
Defendants' negligence, therefore, was not only with respect to the cause of the fire but
also with respect to the spread thereof to the neighboring houses.

There is an admission on the part of Boquiren in his amended answer to the second
amended complaint that "the fire was caused through the acts of a stranger who, without
authority, or permission of answering defendant, passed through the gasoline station and
negligently threw a lighted match in the premises." No evidence on this point was adduced,
but assuming the allegation to be true — certainly any unfavorable inference from the
admission may be taken against Boquiren — it does not extenuate his negligence. A
decision of the Supreme Court of Texas, upon facts analogous to those of the present case,
states the rule which we find acceptable here. "It is the rule that those who distribute a
dangerous article or agent, owe a degree of protection to the public proportionate to and
commensurate with a danger involved ... we think it is the generally accepted rule as
applied to torts that 'if the effects of the actor's negligent conduct actively and continuously
operate to bring about harm to another, the fact that the active and substantially
simultaneous operation of the effects of a third person's innocent, tortious or criminal act is
also a substantial factor in bringing about the harm, does not protect the actor from
liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way,
"The intention of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's
Gas Corporation, 153 S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants.
This issue depends on whether Boquiren was an independent contractor, as held by the
Court of Appeals, or an agent of Caltex. This question, in the light of the facts not
controverted, is one of law and hence may be passed upon by this Court. These facts are:
(1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire
Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised
control over Boquiren in the management of the state; (4) the delivery truck used in
delivering gasoline to the station had the name of CALTEX painted on it; and (5) the license
to store gasoline at the station was in the name of Caltex, which paid the license fees.
(Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he
directed one of his drivers to remove gasoline from the truck into the tank and alleged that
the "alleged driver, if one there was, was not in his employ, the driver being an employee of
the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true that Boquiren
later on amended his answer, and that among the changes was one to the effect that he
was not acting as agent of Caltex. But then again, in his motion to dismiss appellants'
second amended complaint the ground alleged was that it stated no cause of action since
under the allegations thereof he was merely acting as agent of Caltex, such that he could
not have incurred personal liability. A motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but
claims that the business conducted at the service station in question was owned and
operated by Boquiren. But Caltex did not present any contract with Boquiren that would
reveal the nature of their relationship at the time of the fire. There must have been one in
existence at that time. Instead, what was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered into shortly before the expiration of
the one-year period it was intended to operate. This so-called license agreement (Exhibit 5-
Caltex) was executed on November 29, 1948, but made effective as of January 1, 1948 so as
to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite
significant, and gives rise to the conclusion that it was designed precisely to free Caltex from
any responsibility with respect to the fire, as shown by the clause that Caltex "shall not be
liable for any injury to person or property while in the property herein licensed, it being
understood and agreed that LICENSEE (Boquiren) is not an employee, representative or
agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered an
independent contractor. Under that agreement Boquiren would pay Caltex the purely
nominal sum of P1.00 for the use of the premises and all the equipment therein. He could
sell only Caltex Products. Maintenance of the station and its equipment was subject to the
approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights
as licensee without the consent of Caltex. The license agreement was supposed to be from
January 1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two
days prior written notice. Caltex could at any time cancel and terminate the agreement in
case Boquiren ceased to sell Caltex products, or did not conduct the business with due
diligence, in the judgment of Caltex. Termination of the contract was therefore a right
granted only to Caltex but not to Boquiren. These provisions of the contract show the
extent of the control of Caltex over Boquiren. The control was such that the latter was
virtually an employee of the former.

Taking into consideration the fact that the operator owed his position to the company and
the latter could remove him or terminate his services at will; that the service station
belonged to the company and bore its tradename and the operator sold only the products
of the company; that the equipment used by the operator belonged to the company and
were just loaned to the operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the operator and conducted
periodic inspection of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by the operator; and that
the receipts signed by the operator indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the company and not an independent
contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon the
name or title given it by the contracting parties, should thereby a controversy as to what
they really had intended to enter into, but the way the contracting parties do or perform
their respective obligations stipulated or agreed upon may be shown and inquired into, and
should such performance conflict with the name or title given the contract by the parties,
the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens'
Insurance Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent
relationship of employer and independent contractor, and of avoiding liability for the
negligence of the employees about the station; but the company was not satisfied to allow
such relationship to exist. The evidence shows that it immediately assumed control, and
proceeded to direct the method by which the work contracted for should be performed. By
reserving the right to terminate the contract at will, it retained the means of compelling
submission to its orders. Having elected to assume control and to direct the means and
methods by which the work has to be performed, it must be held liable for the negligence of
those performing service under its direction. We think the evidence was sufficient to sustain
the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no
cash invoices were presented to show that Boquiren had bought said gasoline from Caltex.
Neither was there a sales contract to prove the same.

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the
amount of P2,000.00 collected by them on the insurance of the house. The deduction is
now challenged as erroneous on the ground that Article 2207 of the New Civil Code, which
provides for the subrogation of the insurer to the rights of the insured, was not yet in effect
when the loss took place. However, regardless of the silence of the law on this point at that
time, the amount that should be recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be violated. With respect to
the claim of the heirs of Ong P7,500.00 was adjudged by the lower court on the basis of the
assessed value of the property destroyed, namely, P1,500.00, disregarding the testimony of
one of the Ong children that said property was worth P4,000.00. We agree that the court
erred, since it is of common knowledge that the assessment for taxation purposes is not an
accurate gauge of fair market value, and in this case should not prevail over positive
evidence of such value. The heirs of Ong are therefore entitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held
liable solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and
P10,000.00, respectively, with interest from the filing of the complaint, and costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P.,
Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.

e.) Maao Sugar Central VS CA
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 83491 August 27, 1990

MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO ARANETA, petitioners,
vs.
HON. COURT OF APPEALS and HERMINIA FAMOSO, respondents.

Jalandoni, Herrera, Del Castillo & Associates for petitioners.

Napoleon Corral for private respondent.


CRUZ, J.:

To say the least, the Court views with regret the adamant refusal of petitioner Ma-ao Sugar
Central to recompense the private respondent for the death of Julio Famoso, their main
source of support, who was killed in line of duty while in its employ. It is not only a matter
of law but also of compassion on which we are called upon to rule today. We shall state at
the outset that on both counts the petition must fail.

On March 22, 1980, Famoso was riding with a co-employee in the caboose or "carbonera"
of Plymouth No. 12, a cargo train of the petitioner, when the locomotive was suddenly
derailed. He and his companion jumped off to escape injury, but the train fell on its side,
caught his legs by its wheels and pinned him down. He was declared dead on the spot. 1

The claims for death and other benefits having been denied by the petitioner, the herein
private respondent filed suit in the Regional Trial Court of Bago City. Judge Marietta Hobilla-
Alinio ruled in her favor but deducted from the total damages awarded 25% thereof for the
decedent's contributory negligence and the total pension of P41,367.60 private respondent
and her children would be receiving from the SSS for the next five years. The dispositive
portion of the decision read:

WHEREFORE, in view of the foregoing facts and circumstances present in this case, the
Court order, as it does hereby order the defendant Ma-ao Sugar Central thru its Manager
Mr. Guillermo Y. Araneta to pay plaintiff the following amount:

P30,000.00 — for the death of plaintiff's husband, the late
Julio Famoso

P30,000.00 — for actual, exemplary and moral damages

P10,000.00 — loss of earnings for twenty (20) years

P3,000.00 — funeral expenses

—————

P73,000.00 — Total Damages

Less: P18,250.00 — 25% for the deceased's contributory
negligence

Less: P41,367.60 — pension plaintiff and her minor children would

—————
be receiving for five (5) years from the SSS

Pl3,382.40

Plus: P3,000.00 — Attorney's fees and cost of this suit

—————

Pl6,382.40 — Total amount payable to the plaintiff.

—————

SO ORDERED.

The widow appealed, claiming that the deductions were illegal. So did the petitioner, but on
the ground that it was not negligent and therefore not liable at all.

In its own decision, the Court of Appeals 2 sustained the rulings of the trial court except as
to the contributory negligence of the deceased and disallowed the deductions protested by
the private respondent. Thus, the respondent court declared:

WHEREFORE, the decision appealed from is MODIFIED by ordering the defendant-appellant
to pay the plaintiff-appellee the following amounts:

P30,000.00, for the death of Julio Famoso

P30,000.00, for actual, exemplary and moral damages

P10,000.00, for loss of earnings for twenty (20) years

P3,000.00, for funeral expenses

P3,000.00, for attorney's fees

————

P76,000.00 Total Amount

========

In this petition, the respondent court is faulted for finding the petitioner guilty of negligence
notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for
disallowing the deductions made by the trial court.

Investigation of the accident revealed that the derailment of the locomotive was caused by
protruding rails which had come loose because they were not connected and fixed in place
by fish plates. Fish plates are described as strips of iron 8" to 12" long and 3 1/2" thick
which are attached to the rails by 4 bolts, two on each side, to keep the rails aligned.
Although they could be removed only with special equipment, the fish plates that should
have kept the rails aligned could not be found at the scene of the accident.

There is no question that the maintenance of the rails, for the purpose inter alia of
preventing derailments, was the responsibility of the petitioner, and that this responsibility
was not discharged. According to Jose Treyes, its own witness, who was in charge of the
control and supervision of its train operations, cases of derailment in the milling district
were frequent and there were even times when such derailments were reported every
hour. 3 The petitioner should therefore have taken more prudent steps to prevent such
accidents instead of waiting until a life was finally lost because of its negligence.

The argument that no one had been hurt before because of such derailments is of course
not acceptable. And neither are we impressed by the claim that the brakemen and the
conductors were required to report any defect in the condition of the railways and to fill out
prescribed forms for the purpose. For what is important is that the petitioner should act on
these reports and not merely receive and file them. The fact that it is not easy to detect if
the fish plates are missing is no excuse either. Indeed, it should stress all the more the need
for the responsible employees of the petitioner to make periodic checks and actually go
down to the railroad tracks and see if the fish plates were in place.

It is argued that the locomotive that was derailed was on its way back and that it had
passed the same rails earlier without accident. The suggestion is that the rails were properly
aligned then, but that does not necessarily mean they were still aligned afterwards. It is
possible that the fish plates were loosened and detached during its first trip and the rails
were as a result already mis-aligned during the return trip. But the Court feels that even this
was unlikely, for, as earlier noted, the fish plates were supposed to have been bolted to the
rails and could be removed only with special tools. The fact that the fish plates were not
found later at the scene of the mishap may show they were never there at all to begin with
or had been removed long before.

At any rate, the absence of the fish plates – whatever the cause or reason – is by itself alone
proof of the negligence of the petitioner. Res ipsa loquitur. The doctrine was described
recently in Layugan v. Intermediate Appellate Court, 4 thus:

Where the thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose from want of care.

The petitioner also disclaims liability on the ground of Article 2176 of the Civil Code,
contending it has exercised due diligence in the selection and supervision of its employees.
The Court cannot agree. The record shows it was in fact lax in requiring them to exercise the
necessary vigilance in maintaining the rails in good condition to prevent the derailments
that sometimes happened "every hour." Obviously, merely ordering the brakemen and
conductors to fill out prescribed forms reporting derailments-which reports have not been
acted upon as shown by the hourly derailments is-not the kind of supervision envisioned by
the Civil Code.

We also do not see how the decedent can be held guilty of contributory negligence from
the mere fact that he was not at his assigned station when the train was derailed. That
might have been a violation of company rules but could not have directly contributed to his
injury, as the petitioner suggests. It is pure speculation to suppose that he would not have
been injured if he had stayed in the front car rather than at the back and that he had been
killed because he chose to ride in the caboose.

Contributory negligence has been defined as "the act or omission amounting to want of
ordinary care on the part of the person injured which, concurring with the defendant's
negligence, is the proximate cause of the
injury." 5 It has been held that "to hold a person as having contributed to his injuries, it
must be shown that he performed an act that brought about his injuries in disregard of
warnings or signs of an impending danger to health and body." 6 There is no showing that
the caboose where Famoso was riding was a dangerous place and that he recklessly dared
to stay there despite warnings or signs of impending danger.

The last point raised by the petitioner is easily resolved. Citing the case of Floresca v. Philex
Mining Corporation, 7 it argues that the respondent court erred in disauthorizing the
deduction from the total damages awarded the private respondent of the amount of
P41,367.60, representing the pension to be received by the private respondent from the
Social Security System for a period of five years. The argument is that such deduction was
quite proper because of Art. 173 of the Labor Code, as amended. This article provides that
any amount received by the heirs of a deceased employee from the Employees
Compensation Commission, whose funds are administered by the SSS, shall be exclusive of
all other amounts that may otherwise be claimed under the Civil Code and other pertinent
laws.

The amount to be paid by the SSS represents the usual pension received by the heirs of a
deceased employee who was a member of the SSS at the time of his death and had
regularly contributed his premiums as required by the System. The pension is the benefit
derivable from such contributions. It does not represent the death benefits payable under
the Workmen's Compensation Act to an employee who dies as a result of a work-connected
injury. Indeed, the certification from the SSS 8 submitted by the petitioner is simply to the
effect that:

TO WHOM IT MAY CONCERN:

This is to certify that Mrs. Herminia Vda. de Famoso is a recipient of a monthly pension from
the Social Security System arising from the death of her late husband, Julio Famoso, an SSS
member with SSS No. 07-018173-1.

This certification is issued to Ma-ao Sugar Central for whatever legal purpose it may serve
best.

Issued this 8th day of April 1983 in Bacolod City, Philippines.

GODOFREDO S. SISON

Regional Manager

By: (SGD.) COSME Q. BERMEO, JR.

Chief, Benefits Branch

It does not indicate that the pension is to be taken from the funds of the ECC. The
certification would have said so if the pension represented the death benefits accruing to
the heirs under the Workmen's Compensation Act.

This conclusion is supported by the express provision of Art. 173 as amended, which
categorically states that:

Art. 173. Exclusiveness of liability. — Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the
employer to the employee, his dependents or anyone otherwise entitled to receive
damages on behalf of the employee or his dependents. The payment of compensation
under this Title shall not bar the recovery of benefits as provided for in Section 699 of the
Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as
amended, Commonwealth Act Numbered One hundred eighty-six, as amended, Republic
Act Numbered Six hundred ten, as amended, Republic Act Numbered Forty-eight hundred
sixty-four, as amended and other laws whose benefits are administered by the System or by
other agencies of the government. (Emphasis supplied).

Rep. Act No. 1161, as amended, is the Social Security Law.

As observed by Justice J.B.L. Reyes in the case of Valencia v. Manila Yacht Club, 9 which is
still controlling:

. . . By their nature and purpose, the sickness or disability benefits to which a member of the
System may be entitled under the Social Security law (Rep. Act No. 1161, as amended by
Rep. Acts Nos. 1792 and 2658) are not the same as the compensation that may be claimed
against the employer under the Workmen's Compensation Act or the Civil Code, so that
payment to the member employee of social security benefits would not wipe out or
extinguish the employer's liability for the injury or illness contracted by his employee in the
course of or during the employment. It must be realized that, under the Workmen's
Compensation Act (or the Civil Code, in a proper case), the employer is required to
compensate the employee for the sickness or injury arising in the course of the employment
because the industry is supposed to be responsible therefore; whereas, under the Social
Security Act, payment is being made because the hazard specifically covered by the
membership, and for which the employee had put up his own money, had taken place. As
this Court had said:

. . . To deny payment of social security benefits because the death or injury or confinement
is compensable under the Workmen's Compensation Act would be to deprive the
employees members of the System of the statutory benefits bought and paid for by them,
since they contributed their money to the general common fund out of which benefits are
paid. In other words, the benefits provided for in the Workmen's Compensation Act accrues
to the employees concerned due to the hazards involved in their employment and is made a
burden on the employment itself However, social security benefits are paid to the System's
members, by reason of their membership therein for which they contribute their money to
a general common fund . . . .

It may be added that whereas social security benefits are intended to provide insurance or
protection against the hazards or risks for which they are established, e.g., disability,
sickness, old age or death, irrespective of whether they arose from or in the course of the
employment or not, the compensation receivable under the Workmen's Compensation law
is in the nature of indemnity for the injury or damage suffered by the employee or his
dependents on account of the employment. (Rural Transit Employees Asso. vs. Bachrach
Trans. Co., 21 SCRA 1263 [19671])

And according to Justice Jesus G. Barrera in Benguet Consolidated, Inc. v. Social Security
System:" 10

The philosophy underlying the Workmen's Compensation Act is to make the payment of the
benefits provided for therein as a responsibility of the industry, on the ground that it is
industry which should bear the resulting death or injury to employees engaged in the said
industry. On the other hand, social security sickness benefits are not paid as a burden on
the industry, but are paid to the members of the System as a matter of right, whenever the
hazards provided for in the law occurs. To deny payment of social security benefits because
the death or injury or confinement is compensable under the Workmen's Compensation Act
would be to deprive the employees-members of the System of the statutory benefits
bought and paid for by them, since they contribute their money to the general common
fund out of which benefits are paid. In other words, the benefits provided for in the
Workmen's Compensation Act accrues to the employees concerned, due to the hazards
involved in their employment and is made a burden on the employment itself However,
social security benefits are paid to the System's members, by reason of their membership
therein for which they contributed their money to a general common fund.

Famoso's widow and nine minor children have since his death sought to recover the just
recompense they need for their support. Instead of lending a sympathetic hand, the
petitioner has sought to frustrate their efforts and has even come to this Court to seek our
assistance in defeating their claim. That relief-and we are happy to say this must be
withheld.

WHEREFORE, the appealed decision is AFFIRMED in toto. The petition is DENIED, with costs
against the petitioner.

SO ORDERED.

Narvasa (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.

f.) Republic VS Luzon

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21749 September 29, 1967

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUZON STEVEDORING CORPORATION, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.
H. San Luis and L.V. Simbulan for defendant-appellant.



REYES, J.B.L., J.:

The present case comes by direct appeal from a decision of the Court of First Instance of
Manila (Case No. 44572) adjudging the defendant-appellant, Luzon Stevedoring
Corporation, liable in damages to the plaintiff-appellee Republic of the Philippines.

In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring
Corporation was being towed down the Pasig river by tugboats "Bangus" and "Barbero"1
also belonging to the same corporation, when the barge rammed against one of the
wooden piles of the Nagtahan bailey bridge, smashing the posts and causing the bridge to
list. The river, at the time, was swollen and the current swift, on account of the heavy
downpour of Manila and the surrounding provinces on August 15 and 16, 1960.

Sued by the Republic of the Philippines for actual and consequential damage caused by its
employees, amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon
Stevedoring Corporation disclaimed liability therefor, on the grounds that it had exercised
due diligence in the selection and supervision of its employees; that the damages to the
bridge were caused by force majeure; that plaintiff has no capacity to sue; and that the
Nagtahan bailey bridge is an obstruction to navigation.

After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable
for the damage caused by its employees and ordering it to pay to plaintiff the actual cost of
the repair of the Nagtahan bailey bridge which amounted to P192,561.72, with legal
interest thereon from the date of the filing of the complaint.

Defendant appealed directly to this Court assigning the following errors allegedly
committed by the court a quo, to wit:

I — The lower court erred in not holding that the herein defendant-appellant had exercised
the diligence required of it in the selection and supervision of its personnel to prevent
damage or injury to others.1awphîl.nèt

II — The lower court erred in not holding that the ramming of the Nagtahan bailey bridge by
barge L-1892 was caused by force majeure.

III — The lower court erred in not holding that the Nagtahan bailey bridge is an obstruction,
if not a menace, to navigation in the Pasig river.

IV — The lower court erred in not blaming the damage sustained by the Nagtahan bailey
bridge to the improper placement of the dolphins.

V — The lower court erred in granting plaintiff's motion to adduce further evidence in chief
after it has rested its case.

VI — The lower court erred in finding the plaintiff entitled to the amount of P192,561.72 for
damages which is clearly exorbitant and without any factual basis.

However, it must be recalled that the established rule in this jurisdiction is that when a
party appeals directly to the Supreme Court, and submits his case there for decision, he is
deemed to have waived the right to dispute any finding of fact made by the trial Court. The
only questions that may be raised are those of law (Savellano vs. Diaz, L-17441, July 31,
1963; Aballe vs. Santiago, L-16307, April 30, 1963; G.S.I.S. vs. Cloribel, L-22236, June 22,
1965). A converso, a party who resorts to the Court of Appeals, and submits his case for
decision there, is barred from contending later that his claim was beyond the jurisdiction of
the aforesaid Court. The reason is that a contrary rule would encourage the undesirable
practice of appellants' submitting their cases for decision to either court in expectation of
favorable judgment, but with intent of attacking its jurisdiction should the decision be
unfavorable (Tyson Tan, et al. vs. Filipinas Compañia de Seguros) et al., L-10096, Res. on
Motion to Reconsider, March 23, 1966). Consequently, we are limited in this appeal to the
issues of law raised in the appellant's brief.

Taking the aforesaid rules into account, it can be seen that the only reviewable issues in this
appeal are reduced to two:

1) Whether or not the collision of appellant's barge with the supports or piers of the
Nagtahan bridge was in law caused by fortuitous event or force majeure, and

2) Whether or not it was error for the Court to have permitted the plaintiff-appellee to
introduce additional evidence of damages after said party had rested its case.

As to the first question, considering that the Nagtahan bridge was an immovable and
stationary object and uncontrovertedly provided with adequate openings for the passage of
water craft, including barges like of appellant's, it is undeniable that the unusual event that
the barge, exclusively controlled by appellant, rammed the bridge supports raises a
presumption of negligence on the part of appellant or its employees manning the barge or
the tugs that towed it. For in the ordinary course of events, such a thing does not happen if
proper care is used. In Anglo American Jurisprudence, the inference arises by what is known
as the "res ipsa loquitur" rule (Scott vs. London Docks Co., 2 H & C 596; San Juan Light &
Transit Co. vs. Requena, 224 U.S. 89, 56 L. Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149
N.W. 299; Bryne vs. Great Atlantic & Pacific Tea Co., 269 Mass. 130; 168 N.E. 540; Gribsby
vs. Smith, 146 S.W. 2d 719).

The appellant strongly stresses the precautions taken by it on the day in question: that it
assigned two of its most powerful tugboats to tow down river its barge L-1892; that it
assigned to the task the more competent and experienced among its patrons, had the
towlines, engines and equipment double-checked and inspected; that it instructed its
patrons to take extra precautions; and concludes that it had done all it was called to do, and
that the accident, therefore, should be held due to force majeure or fortuitous event.

These very precautions, however, completely destroy the appellant's defense. For caso
fortuito or force majeure (which in law are identical in so far as they exempt an obligor from
liability)2 by definition, are extraordinary events not foreseeable or avoidable, "events that
could not be foreseen, or which, though foreseen, were inevitable" (Art. 1174, Civ. Code of
the Philippines). It is, therefore, not enough that the event should not have been foreseen
or anticipated, as is commonly believed, but it must be one impossible to foresee or to
avoid. The mere difficulty to foresee the happening is not impossibility to foresee the same:
"un hecho no constituye caso fortuito por la sola circunstancia de que su existencia haga
mas dificil o mas onerosa la accion diligente del presento ofensor" (Peirano Facio,
Responsibilidad Extra-contractual, p. 465; Mazeaud Trait de la Responsibilite Civil, Vol. 2,
sec. 1569). The very measures adopted by appellant prove that the possibility of danger was
not only foreseeable, but actually foreseen, and was not caso fortuito.

Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and appreciating
the perils posed by the swollen stream and its swift current, voluntarily entered into a
situation involving obvious danger; it therefore assured the risk, and can not shed
responsibility merely because the precautions it adopted turned out to be insufficient.
Hence, the lower Court committed no error in holding it negligent in not suspending
operations and in holding it liable for the damages caused.

It avails the appellant naught to argue that the dolphins, like the bridge, were improperly
located. Even if true, these circumstances would merely emphasize the need of even higher
degree of care on appellant's part in the situation involved in the present case. The
appellant, whose barges and tugs travel up and down the river everyday, could not safely
ignore the danger posed by these allegedly improper constructions that had been erected,
and in place, for years.

On the second point: appellant charges the lower court with having abused its discretion in
the admission of plaintiff's additional evidence after the latter had rested its case. There is
an insinuation that the delay was deliberate to enable the manipulation of evidence to
prejudice defendant-appellant.

We find no merit in the contention. Whether or not further evidence will be allowed after a
party offering the evidence has rested his case, lies within the sound discretion of the trial
Judge, and this discretion will not be reviewed except in clear case of abuse.3

In the present case, no abuse of that discretion is shown. What was allowed to be
introduced, after plaintiff had rested its evidence in chief, were vouchers and papers to
support an item of P1,558.00 allegedly spent for the reinforcement of the panel of the
bailey bridge, and which item already appeared in Exhibit GG. Appellant, in fact, has no
reason to charge the trial court of being unfair, because it was also able to secure, upon
written motion, a similar order dated November 24, 1962, allowing reception of additional
evidence for the said defendant-appellant.4

WHEREFORE, finding no error in the decision of the lower Court appealed from, the same is
hereby affirmed. Costs against the defendant-appellant.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ.,
concur.
Bengzon, J.P. J., on leave, took no part.

7. CONTRIBUTORY NEGLIGENCE
a.) Bernardo VS Legaspi (case somewhere above)
b.) Taylor VS Manila Electric (case above)
c.) Rakes VS Atlantic (case above)