1st EXAM Case Digests for Torts 2015-2016 (Atty.
Rucel Cayetano) by: Angit, Masiga, Respicio & Solis ®
1. FAUSTO BARREDO VS. GARCIA AND ALMARIO
Facts: On May 3, 1936, there was a head-on collision between
a taxi of the Malate Taxi driven by Fontanilla and a carretela
guided by Dimapilis. The carretela was overturned and a
passenger, 16-year-old boy Garcia, suffered injuries from
which resulted to his death. A criminal action was filed against
Fontanilla, and he was convicted. The court in the criminal
case granted the petition to reserve the civil action against
Barredo, the proprietor of the Malate Taxi and the employer of
Fontanilla, making him primarily and directly responsible under
culpa aquiliana. It was undisputed that Fontanilla’s negligence
was the cause of the accident as he was driving on the wrong
side of the road at high speed, and there was no showing that
Barredo exercised the diligence of a good father of a family.
Barredo’s theory of defense is that Fontanilla’s negligence
being punishable by the Revised Penal Code, that his liability
as employer is only subsidiary liable but Fontanilla was sued
for civil liability, hence, Barredo claims that he cannot be held
liable.
Issue: Whether or not complainant’s liability as employer of
Fontanilla was only subsidiary and not as primarily and directly
responsible under Article 1903 of the Civil Code.
Ruling: No. The Supreme Court ruled that complainant’s
liability is not only subsidiary but also primary liability. The
Court affirmed the decision of the Court of Appeals which ruled
that the liability sought to be imposed upon Barredo in this
action is not a civil obligation arising from a felony, but an
obligation imposed in Article 1903 of the Civil Code by reason
of his negligence in the selection or supervision of his servant
or employee. QUASI-DELICT OR CULPA AQUILIANA is a
separate legal institution under the Civil Code and is entirely
distinct and independent from a delict or crime as punished
under the Revised Penal Code (RPC). In this jurisdiction, the
same negligent act causing damage may produce civil liability
(subsidiary) arising from a crime under Art. 103 of the RPC; or
create an action for the quasi delict or culpa aquiliana (primary)
and the parties injured are free to choice which course to take.
In the instant case, the negligent act of Fontanilla produced
two liabilities of Barredo. First, a subsidiary one because of the
civil liability of Fontanilla arising from the latter’s criminal
negligence; and second, Barredo’s primary and direct
responsibility arising from his presumed negligence as an
employer in the selection of his employees or their supervision,
under Art. 1903 of the Civil Code. The parties instituted an
action for damages under Art. 1903 of the Civil Code. Barredo
was found guilty of negligence for carelessly employing
Fontanilla, who had been caught several times for violation of
the Automobile Law and speeding violation. Thus, the petition
is denied. Barredo must indemnify plaintiffs under the
provisions of Art. 1903 of the Civil Code.
2. PICART VS SMITH
FACTS: On December 12, 1912, on the Carlatan Bridge, at
San Fernando, La Union, It appears that the Picart was riding
on his pony over said bridge and before he had gotten half way
across, the Smith approached from the opposite direction in an
automobile, going at the rate of about ten or twelve miles per
hour. As the Smith 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.
Picart 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 Smith guided it toward his left, that being the
proper side of the road for the machine. In so doing the Smith
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
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
was apparently quiet, Smith, 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. As a result of its
injuries the horse died. Picart received contusions which
caused temporary unconsciousness and required medical
attention for several days.
ISSUE: 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
HELD:
YES. Smith is guilty of negligence.
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.
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.
A prudent man, placed in the position of the defendant, would
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 Picart 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
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1st EXAM Case Digests for Torts 2015-2016 (Atty. Rucel Cayetano)
bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly
against the other party.
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 Smith 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.
3. VICTORINO CUSI and PILAR POBRE vs. PHILIPPINE
NATIONAL RAILWAYS
FACTS: After attending a party which broke up at about 11
o'clock, spouses Cusi proceeded home in their Vauxhall car
with Victorino Cusi at the wheel. Upon reaching the railroad
tracks, finding that the level crossing bar was raised and
seeing that there was no flashing red light, and hearing no
whistle from any coming train, Cusi merely slackened his
speed and proceeded to cross the tracks. At the same time, a
train bound for Lucena traversed the crossing, resulting in a
collision between the two. The impact threw the spouses out of
their car which was smashed. One Benjamin Franco, who
came from the same party and was driving a vehicle right
behind them, rushed to their aid and brought them to San Juan
de Dios Hospital for emergency treatment. Mrs. Cusi
underwent a total of four surgical opera. As a result of the
fracture on her right arm, there was a shortening of about 1
cm. of that arm. She lost the flexibility of her wrist, elbow and
shoulder. Likewise, Victorino Cusi suffered brain injuries which
affected his speech, memory, sense of hearing and neck
movement.
Victorino Cusi claimed that prior to the accident he was a
successful businessman and on the other hand, his wife, Pilar,
was a skilled music and piano teacher. After the accident, she
lost the dexterity of her fingers forcing her to quit her
profession.
ISSUE: Whether or not the gross negligence of Victorino Cusi
was the proximate cause of the collision.
RULING: No. The gross negligence of defendant-appellant
was the proximate cause of the collision is affirmed by this
Court.
As the action is predicated on negligence, the New Civil
Code making clear that "whoever by act or omission causes
damage to another, there being fault or negligence, is obliged
to pay for the damage done the crucial question posed in the
petition at bar is the existence of negligence on the part of
defendant-appellant as found by the lower court. The gross
negligence of defendant-appellant was the proximate cause of
the collision has been thoroughly reviewed by this Court and
we fully affirm the same.
Negligence has been defined by Judge Cooley in his work on
Torts 3d ed sec. 1324 3 as "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." By such a
test, it can readily be seen that there is no hard and fast rule
whereby such degree of care and vigilance is measured, it is
dependent upon the circumstances in which a person finds
himself so situated. All that the law requires is that it is always
incumbent upon a person to use that care and diligence
expected of reasonable men under similar circumstances.
Undisputably, the warning devices installed at the railroad
crossing were manually operated; there were only 2 shifts of
guards provided for the operation thereof — one, the 7:00 A.M.
to 3:00 P. M. shift, and the other, the 3:00 P.M. to 11:00 P.M.
shift. On the night of the accident, the train for Lucena was on
an unscheduled trip after 11:00 P.M. During that precise hour,
the warning devices were not operating for no one attended to
them. Also, as observed by the lower court, the locomotive
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
driver did not blow his whistle, thus: "... he simply sped on
without taking an extra precaution of blowing his whistle from a
distance of 50 to 10 meters from the crossing. That the train
was running at full speed is attested to by the fact that
notwithstanding the application of the emergency brakes, the
train did not stop until it reached a distance of around 100
meters."
These facts assessed together show the inadequacy, nay, the
absence, of precautions taken by the defendant-appellant to
warn the travelling public of the impending danger. It is clear to
Us that as the signal devices were wholly manually-operated,
there was an urgent need for a flagman or guard to man the
crossing at all times. As it was, the crossing was left
unattended to after eleven o'clock every night and on the night
of the accident. We cannot in all reason justify or condone the
act of the defendant-appellant allowing the subject locomotive
to travel through the unattended crossing with inoperative
signal devices, but without sending any of its employees to
operate said signal devices so as to warn oncoming motorists
of the approach of one of its locomotives. It is not surprising
therefore that the in operation of the warning devices created a
situation which was misunderstood by the riding public to mean
safe passage. Jurisprudence recognizes that if warning
devices are installed in railroad crossings, the travelling public
has the right to rely on such warning devices to put them on
their guard and take the necessary precautions before crossing
the tracks. A need, therefore, exists for the railroad company to
use reasonable care to keep such devices in good condition
and in working order, or to give notice that they are not
operating, since if such a signal is misunderstood it is a
menace. 4 Thus, it has been held that if a railroad company
maintains a signalling device at a crossing to give warning of
the approach of a train, the failure of the device to operate is
generally held to be evidence of negligence, which maybe
considered with all the circumstances of the case in
determining whether the railroad company was negligent as a
matter of fact. 5
After a thorough perusal of the facts attendant to the case, this
Court is in fun accord with the lower court. Plaintiff-appellee
Victorino Cusi had exercised all the necessary precautions
required of him as to avoid injury to -himself and to others. We
find no need for him to have made a full stop; relying on his
faculties of sight and hearing, Victorino Cusi had no reason to
anticipate the impending danger. The record shows that the
spouses Cusi previously knew of the existence of the railroad
crossing, having stopped at the guardhouse to ask for
directions before proceeding to the party. At the crossing, they
found the level bar raised, no warning lights flashing nor
warning bells ringing, nor whistle from an oncoming train. They
safely traversed the crossing. On their return home, the
situation at the crossing did not in the least change, except for
the absence of the guard or flagman. Hence, on the same
impression that the crossing was safe for passage as before,
plaintiff-appellee Victorino Cusi merely slackened his speed
and proceeded to cross the tracks, driving at the proper rate of
speed for going over railroad crossings. Had defendant-
appellant been successful in establishing that its locomotive
driver blew his whistle to warn motorists of his approach to
compensate for the absence of the warning signals, and that
Victorino Cusi, instead of stopping or slackening his speed,
proceeded with reckless speed and regardless of possible or
threatened danger, then We would have been put in doubt as
to the degree of prudence exercised by him and would have, in
all probability, declared him negligent. 6 But as the contrary
was established, we remain convinced that Victorino Cusi had
not, through his own negligence, contributed to the accident so
as to deny him damages from the defendant-appellant.
4. Jarco Marketing vs. CA
FACTS: Respondent Sps Aguilar are the parents of the
deceased Zhieneth Aguilar who met an accident while inside
the premises of Petitioner’s department store.
While Respondent Criselda was signing her credit card slip at
the payment and verification counter in Syvels Department
Store in Makati, she felt a sudden gust of wind a heard a loud
sound. She looked behind her and saw her daughter Zhieneth
(6 years old) on the floor pinned by the bulk of the stores gift-
wrapping counter.
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1st EXAM Case Digests for Torts 2015-2016 (Atty. Rucel Cayetano)
She was rushed to the hospital but died after 14 days.
Private respondents filed a complaint for damages.
Petitioners on the other hand, denied any liability imputing the
negligence to Criselda for allowing her daughter to roam freely
in the department store. Alleging further, that the deceased
committed contributory negligence when she climbed the
counter. Also herein petitioners defense is that they have
exercised due diligence of a good father of a family in the
selection, supervision and control of their employees.
Trial Court favored petitioners, contemplating that Zhieneth’s
action is the proximate cause of the accident.
CA favored respondents on it declared that ZHIENETH, who
was below seven (7) years old at the time of the incident, was
absolutely incapable of negligence or other tort. It reasoned
that since a child under nine (9) years could not be held liable
even for an intentional wrong, then the six-year old ZHIENETH
could not be made to account for a mere mischief or reckless
act. It also absolved CRISELDA of any negligence, finding
nothing wrong or out of the ordinary in momentarily allowing
ZHIENETH to walk while she signed the document at the
nearby counter.
ISSUE:
(1) Whether or not Zhieneth was guilty of contributory
negligence.
(2) Whether or not the death of ZHIENETH was accidental or
attributable to negligence.
HELD:
(1)NO
Anent the negligence imputed to ZHIENETH, we apply the
conclusive presumption that favors children below nine (9)
years old in that they are incapable of contributory negligence
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without discernment, and
is, on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains
in a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment.
(2)NEGLIGENCE.
An accident pertains to an unforeseen event in which no fault
or negligence attaches to the defendant
negligence is the omission to do something which a
reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man
would not do.
We rule that the tragedy which befell ZHIENETH was no
accident and that ZHIENETHs death could only be attributed to
negligence.
Part of res gestae. Statements made by a person while a
startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as
part of the res gestae.
5. CHILD LEARNING CENTER, INC. vs. TAGARIO
FACTS: In the afternoon of March 5, 1991, Timothy, a Grade 4
pupil, entered the boys comfort room at the third floor of the
Marymount building to answer the call of nature. He, however,
found himself locked inside and unable to get out. Timothy
started to panic and so he banged and kicked the door and
yelled several times for help. When no help arrived he decided
to open the window to call for help. However, Timothy went
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
right through and fell down three stories and suffered serious
multiple physical injuries.
An action under Article 2176 of the Civil Code was filed by
respondents parents against the CLC however, CLC
maintained that there was nothing defective about the locking
mechanism of the door and that the fall of Timothy was not due
to its fault or negligence. CLC further maintained that it had
exercised the due care and diligence of a good father of a
family to ensure the safety, well-being and convenience of its
students.
ISSUE: WON, CLC is negligent and thus liable for the injuries
suffered by Timothy. YES!
HELD: In every tort case filed under Article 2176 of the Civil
Code, plaintiff has to prove by a preponderance of evidence:
(1) the damages suffered by the plaintiff; (2) the fault or
negligence of the defendant or some other person for whose
act he must respond; and (3) the connection of cause and
effect between the fault or negligence and the damages
incurred.
The fact, however, that Timothy fell out through the window
shows that the door could not be opened from the inside. That
sufficiently points to the fact that something was wrong with the
door, if not the door knob, under the principle of res ipsa
loquitor. The doctrine of res ipsa loquitor applies where (1) the
accident was of such character as to warrant an inference that
it would not have happened except for the defendants
negligence; (2) the accident must have been caused by an
agency or instrumentality within the exclusive management or
control of the person charged with the negligence complained
of; and (3) the accident must not have been due to any
voluntary action or contribution on the part of the person
injured. Petitioners are clearly answerable for failure to see to
it that the doors of their school toilets are at all times in working
condition. The fact that a student had to go through the
window, instead of the door, shows that something was wrong
with the door.
Petitioners argument that CLC exercised the due diligence of a
good father of a family in the selection and supervision of its
employees is not decisive. Due diligence in the selection and
supervision of employees is applicable where the employer is
being held responsible for the acts or omissions of others
under Article 2180 of the Civil Code. In this case, CLCs liability
is under Article 2176 of the Civil Code, premised on the fact of
its own negligence in not ensuring that all its doors are properly
maintained.
6. ILAO- ORETA VS RONQUILLO G.R. NO. 172406
FACTS: Respondents, spouses Eva and Noel Ronquillo had
not been blessed with a child despite several years of
marriage. They thus consulted petitioner, Dr. Concepcion Ilao-
Oreta, an obstetrician-gynecologist-consultant at the St. Luke’s
Medical Center where she was, at the time material to the
case, the chief of the Reproductive Endocrinology and Infertility
Section.
Upon Dr. Ilao-Oreta’s advice, Eva Marie agreed to undergo a
laparoscopic procedure whereby a laparascope would be
inserted through the patient’s abdominal wall to get a direct
view of her internal reproductive organ in order to determine
the real cause of her infertility.
The procedure was scheduled on April 5, 1999 at 2:00 p.m., to
be performed by Dr. Ilao-Oreta. At around 7:00 a.m. of said
date, Eva Marie, accompanied by her husband Noel, checked
in at the St. Luke’s Medical Center and underwent pre-
operative procedures including the administration of
intravenous fluid and enema.
Dr. Ilao-Oreta did not arrive at the scheduled time for the
procedure, however, and no prior notice of its cancellation was
received. It turned out that the doctor was on a return flight
from her Honeymoon in Hawaii to, and arrived at 10:00 p.m. of
April 5, 1999 in, Manila.
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1st EXAM Case Digests for Torts 2015-2016 (Atty. Rucel Cayetano)
On May 18, 1999, the Ronquillo spouses filed a complaint1
against Dr. Ilao-Oreta and the St. Luke’s Medical Center for
breach of professional and service contract and for damages.
Dr. Ilao-Oreta, in her answer, said that she was scheduled to
leave Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware
that her trip from Hawaii to Manila would take about 12 hours,
inclusive of a stop-over at the Narita Airport in Japan, she
estimated that she would arrive in Manila in the early morning
of April 5, 1999. She thus believed in utmost good faith that
she would be back in Manila in time for the scheduled conduct
of the laparoscopic procedure. She failed to consider the time
difference between Hawaii and the Philippines, however.
St. Luke’s Medical Center contended that the spouses have no
cause of action against it since it performed the pre-operative
procedures without delay, and any cause of action they have
would be against Dr. Ilao-Oreta.
ISSUE: Whether or not Dr. Ilao Oreta’s act reflect gross
negligence
HELD
NO. Dr. Ilao- Oreta’s act did not amount to gross
negligence.
Gross negligence" implies a want or absence of or failure to
exercise slight care or diligence, or the entire absence of care.
It evinces a thoughtless disregard of consequences without
exerting any effort to avoid them.14 It is characterized by want
of even slight care, acting or omitting to act in a situation where
there is a duty to act, not inadvertently but willfully and
intentionally with a conscious indifference to consequences in
so far as other persons may be affected.
The records show that before leaving for Hawaii, Dr. Ilao-Oreta
left an admitting order with her secretary for one of the
spouses to pick up, apprised Eva Marie of the necessary
preparations for the procedure, and instructed the hospital staff
to perform pre-operative treatments.16 These acts of the
doctor reflect an earnest intention to perform the procedure on
the day and time scheduled.
The records also show that on realizing that she missed the
scheduled procedure, Dr. Ilao-Oreta, upon arrival in Manila,
immediately sought to rectify the same.
Upon reaching Manila at around 10pm on that day, Dr. Oreta
then immediately called the hospital, and tried to reach the
spouses Ronquillo and apologized.
The evidence then shows that Dr. Ilao-Oreta, who had traveled
more than twice to the United States where she obtained a
fellowship in Reproductive Endocrinology and Infertility was
indeed negligent when she scheduled to perform professional
service at 2:00 p.m. on April 5, 1999 without considering the
time difference between the Philippines and Hawaii.
The doctor’s act did not, however, reflect gross negligence as
defined above.
Although petitioner failed to take into consideration the time
difference between the Philippines and Hawaii, the situation
then did not present any clear and apparent harm or injury that
even a careless person may perceive. Unlike in situations
where the Supreme Court had found gross negligence to exist,
petitioner could not have been conscious of any foreseeable
danger that may occur since she actually believed that she
would make it to the operation that was elective in nature, the
only purpose of which was to determine the real cause of
infertility and not to treat and cure a life threatening disease.
Thus, in merely fixing the date of her appointment with
respondent Eva Marie Ronquillo, petitioner was not in the
pursuit or performance of conduct which any ordinary person
may deem to probably and naturally result in injury.
It bears noting that when she was scheduling the date of her
performance of the procedure, Dr. Ilao-Oreta had just gotten
married and was preparing for her honeymoon and it is of
common human knowledge that excitement attends its
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
preparations. Her negligence could then be partly attributed to
human frailty which rules out its characterization as gross.
The doctor’s negligence not being gross, the spouses are not
entitled to recover moral damages. Neither are the spouses
entitled to recover exemplary damages in the absence of a
showing that Dr. Ilao-Oreta acted in a wanton, fraudulent,
reckless, oppressive or malevolent manner.
7. ELENA AMEDO vs. RIO Y OLABARRIETA, INC.
FACTS: Plaintiff Amedo sought to collect from defendant Rio y
Olabarrieta, Inc., the sum of P2,038.40 as compensation for
the death of her son, Filomeno Managuit, who worked for the
defendant as a seaman of the M/S Pilar II. The main allegation
of the amended complaint was:
That on May 27, 1949, at or about 11:30 o'clock in the
morning while the said Filomeno Managuit was in the course
of his employment, performing his duties as such ordinary
seaman on defendant's M/S "Pilar II",which was anchored
then about 1 1/2 miles from the seashore of Arceli
Dumarang, Palawan, his two-peso bill was blown by the
breeze into the sea and in his effort to retrieve the same
from the waters he was drowned.
ISSUE: Whether or not the accident in question was caused by
the gross negligence of Filomeno?
RULING: Yes.
It may be conceded that the death of Filomeno took place "in
the course of" his employment, however, the accident which
produced this tragic result did not "arise out of" his
employment. Indeed, the latter was not "the origin or cause of
said accident. The blowing of his 2-peso bill may have grown
out of, or arisen from, his employment. It was the result of a
risk peculiar to his work as a seaman or incidental to such
work. But, his death was the consequence of his decision to
jump into the water to retrieve said bill. The hazardous nature
of this act was not due specially to the nature of his
employment. It was a risk to which any person on board
the M/S Pilar II, such as a passenger thereof or an ordinary
visitor, would have been exposed had he, likewise, jumped into
the sea, as Filomeno had.
The phrase "notorious negligence" has been held to be
tantamount to "gross negligence", which, in turn, has been
defined as follows:
Gross negligence is define to be the want of even slight care
and diligence.
By gross negligence is meant "such entire want of care as to
raise a presumption that the person in fault is conscious of
the probable consequences of carelessness, and is
indifferent, or worse, to the danger of injury to person or
property of others." ... The negligence must amount to a
reckless disregard of the safety of person or property."
It cannot be denied that in jumping into the sea, one mile and a
half from the seashore of Arceli, Dumarang, Palawan,
Filomeno failed to exercise "even slight care and diligence,"
that he displayed a "reckless disregard of the safety" of his
person, that he could not have been but conscious of the
probable consequences" of his carelessness and that he was
"indifferent, or worse, to the danger of injury.
8. SICAM VS. JORGE
FACTS: Respondent Lulu Jorge pawned several pieces of
jewelry with Agencia de R. C. Sicamto secure a loan.
On October 19, 1987, two armed men entered the pawnshop
and took away whatever cash and jewelry were found inside
the pawnshop vault.
On the same date, Sicam sent Lulu a letter informing her of the
loss of her jewelry due to the robbery incident in the pawnshop.
Respondent Lulu then wroteback expressing disbelief, then
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requested Sicam to prepare the pawned jewelry for withdrawal
on November 6, but Sicam failed to return the jewelry.
Sps Jorge then filed a complaint against Sicam with the RTC
seeking indemnification for the loss of pawned jewelry and
payment of damages and attorney’s fees.
The RTC dismissed respondents’ complaint as well as
petitioners’ counterclaim. Respondents appealed the RTC
Decision to the CA which reversed the RTC, ordering the
appellees to pay appellants the actual value of the lost jewelry
and AF. Petitioners MR denied, hence the instant petition for
review on Certiorari.
Petitioners insist that they are not liable since robbery is a
fortuitous event and they are not negligent at all.
ISSUE: Are the petitioners liable for the loss of the pawned
articles in their possession?
HELD: YES
Article 1174 of the Civil Code provides:
Art. 1174. Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the nature
of the obligation requires the assumption of risk, no person
shall be responsible for those events which could not be
foreseen or which, though foreseen, were inevitable.
Fortuitous events by definition are extraordinary events not
foreseeable or avoidable. 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.
To constitute a fortuitous event, the following elements must
concur:
(a) the cause of the unforeseen and unexpected occurrence or
of the failure of the debtor to comply with obligations must be
independent of human will;
(b) it must be impossible to foresee the event that constitutes
the casofortuito or, if it can be foreseen, it must be impossible
to avoid;
(c) the occurrence must be such as to render it impossible for
the debtor to fulfill obligations in a normal manner; and,
(d) the obligor must be free from any participation in the
aggravation of the injury or loss.
The burden of proving that the loss was due to a fortuitous
event rests on him who invokes it. And, in order for a fortuitous
event to exempt one from liability, it is necessary that one has
committed no negligence or misconduct that may have
occasioned the loss.
Sicam had testified that there was a security guard in their
pawnshop at the time of the robbery. He likewise testified that
when he started the pawnshop business in 1983, he thought of
opening a vault with the nearby bank for the purpose of
safekeeping the valuables but was discouraged by the Central
Bank since pawned articles should only be stored in a vault
inside the pawnshop. The very measures which petitioners had
allegedly adopted show that to them the possibility of robbery
was not only foreseeable, but actually foreseen and
anticipated. Sicam’s testimony, in effect, contradicts
petitioners’ defense of fortuitous event.
Moreover, petitioners failed to show that they were free from
any negligence by which the loss of the pawned jewelry may
have been occasioned.
Robbery per se, just like carnapping, is not a fortuitous event. It
does not foreclose the possibility of negligence on the part of
herein petitioners.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
Petitioners merely presented the police report of the
Parañaque Police Station on the robbery committed based on
the report of petitioners’ employees which is not sufficient to
establish robbery. Such report also does not prove that
petitioners were not at fault. On the contrary, by the very
evidence of petitioners, the CA did not err in finding that
petitioners are guilty of concurrent or contributory negligence
as provided in Article 1170 of the Civil Code, to wit:
Art. 1170. Those who in the performance of their obligations
are guilty of fraud, negligence, or delay, and those who in any
manner contravene the tenor thereof, are liable for damages.
Article 2123 of the Civil Code provides that with regard to
pawnshops and other establishments which are engaged in
making loans secured by pledges, the special laws and
regulations concerning them shall be observed, and
subsidiarily, the provisions on pledge, mortgage and
antichresis.
The provision on pledge, particularly Article 2099 of the Civil
Code, provides that the creditor shall take care of the thing
pledged with the diligence of a good father of a family. This
means that petitioners must take care of the pawns the way a
prudent person would as to his own property.
In this connection, Article 1173 of the Civil Code further
provides:
Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the
persons, of time and of the place. When negligence shows bad
faith, the provisions of Articles 1171 and 2201, paragraph 2
shall apply.
If the law or contract does not state the diligence which is to be
observed in the performance, that which is expected of a good
father of a family shall be required.
We expounded in Cruz v. Gangan that negligence is the
omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of
human affairs, would do; or the doing of something which a
prudent and reasonable man would not do. It is want of care
required by the circumstances.
A review of the records clearly shows that petitioners failed to
exercise reasonable care and caution that an ordinarily prudent
person would have used in the same situation. Petitioners
were guilty of negligence in the operation of their pawnshop
business. Sicam’s testimony revealed that there were no
security measures adopted by petitioners in the operation of
the pawnshop. Evidently, no sufficient precaution and vigilance
were adopted by petitioners to protect the pawnshop from
unlawful intrusion. There was no clear showing that there was
any security guard at all. Or if there was one, that he had
sufficient training in securing a pawnshop. Further, there is no
showing that the alleged security guard exercised all that was
necessary to prevent any untoward incident or to ensure that
no suspicious individuals were allowed to enter the premises.
In fact, it is even doubtful that there was a security guard, since
it is quite impossible that he would not have noticed that the
robbers were armed with caliber .45 pistols each, which were
allegedly poked at the employees. Significantly, the alleged
security guard was not presented at all to corroborate
petitioner Sicam’s claim; not one of petitioners’ employees who
were present during the robbery incident testified in court.
Furthermore, petitioner Sicam’s admission that the vault was
open at the time of robbery is clearly a proof of petitioners’
failure to observe the care, precaution and vigilance that the
circumstances justly demanded.
The robbery in this case happened in petitioners’ pawnshop
and they were negligent in not exercising the precautions justly
demanded of a pawnshop.
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9. CORINTHIAN GARDENS ASSOCIATION vs. SPOUSES
TANJANGCO & SPOUSES CUASO
FACTS: Respondents-spouses Tanjangcos own Lots 68 and
69 located at Corinthian Gardens Subdivision, Quezon City,
which is managed by petitioner Corinthian Gardens
Association. On the other hand, respondents-spouses Cuasos
own Lot 65 which is adjacent to the Tanjangcos’ lots.
Before the Cuasos constructed their house on Lot 65, a
relocation survey was necessary. Corinthian referred Engr. De
Dios to the Cuasos. Before, during and after the construction of
the said house, Corinthian conducted periodic ocular
inspections in order to determine compliance with the
approved plans pursuant to the Manual of Rules and
Regulations of Corinthian. Unfortunately, after the Cuasos
constructed their house employing the services of C.B. Paraz
& Construction Co. as builder, their perimeter fence
encroached on the Tanjangcos’ Lot 69 by 87 square meters.
No amicable settlement was reached between the parties.
Thus, the Tanjangcos demanded that the Cuasos demolish the
perimeter fence but the latter failed and refused, prompting the
Tanjangcos to file with the RTC a suit against the Cuasos for
Recovery of Possession with Damages.
Eventually, the Cuasos filed a Third-Party Complaint against
Corinthian, C.B. Paraz and Engr. De Dios. The Cuasos
ascribed negligence to C.B. Paraz for its failure to ascertain the
proper specifications of their house, and to Engr. De Dios for
his failure to undertake an accurate relocation survey, thereby,
exposing them to litigation. The Cuasos also faulted Corinthian
for approving their relocation survey and building plans without
verifying their accuracy and in making representations as to
Engr. De Dios' integrity and competence. The Cuasos alleged
that had Corinthian exercised diligence in performing its duty,
they would not have been involved in a boundary dispute with
the Tanjangcos.
ISSUE: WON, Corinthians is negligent and thus should answer
for the litigation expenses and damages suffered by the
Spouses Cuaso. YES!
HELD: The test to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in
committing the alleged negligent act use that reasonable care
and caution which an ordinary person would have used in the
same situation? If not, then he is guilty of negligence. The law,
in effect, adopts the standard supplied by the imaginary
conduct of the discreet paterfamilias in 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 a man of ordinary intelligence and
prudence, and determines liability according to that standard.
By this test, we find Corinthian negligent.
We agree with the CA when it aptly held:
Corinthian cannot and should not be allowed to justify or
excuse its negligence by claiming that its approval of the
Cuasos’ building plans was only limited to a so-called "table
inspection;" and not actual site measurement. To accept some
such postulate is to put a premium on negligence. Corinthian
was not organized solely for the defendants Cuasos. It is also
the subdivision of the plaintiffs-spouses Tanjangcos - and of all
others who have their dwelling units or abodes therein.
Pertinently, its Manual of Rules and Regulations stipulates in
Section 3 thereof (under the heading Construction), thus:
“A. Rules and Regulations
No new construction can be started unless the building plans
are approved by the Association and the appropriate
Builder’s cash bond and pre-construction fees are paid. Xxx”
It goes without saying that this Manual of Rules and
Regulations applies to all - or it does not apply at all. To borrow
a popular expression, what is sauce for the gander is sauce for
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
the goose - or ought to be. To put it matter-of-factly and bluntly,
thus, its so-called "table inspection" approval of the Cuasos’
building plans is no less of an approval, as approvals come
and go. And since it is an approval tainted with negligence, the
necessary and inevitable consequences which law and justice
attach to such negligence must, as a matter of law and justice,
also necessarily attach to Corinthian.
By its Manual of Rules and Regulations, it is reasonable to
assume that Corinthian, through its representative, in the
approval of building plans, and in the conduct of periodic
inspections of on-going construction projects within the
subdivision, is responsible in insuring compliance with the
approved plans, inclusive of the construction of perimeter
walls, which in this case is the subject of dispute between the
Tanjangcos and the Cuasos. It is not just or equitable to relieve
Corinthian of any liability when, by its very own rules, it
imposes its authority over all its members to the end that "no
new construction can be started unless the plans are approved
by the Association and the appropriate cash bond and pre-
construction fees are paid.
10. HRS. OF COMPLETO VS ALBAYADA G.R. NO. 172200
FACTS: The instant case involved a collision between a
taxicab, driven by Petitioner Redentor Completo owned and
operated by Albiad, and a bicycle which resulted in serious
physical injuries to the bicycle rider, Albayda, a Master
Sergeant of the Philippine Air Force.
The complaint alleged that, while Albayda was riding a bicycle
along 11th Street on his way to the office to report for duty, the
taxi driven by Completo bumped and sideswiped him, causing
serious physical injuries. Albayda was brought to the Philippine
Air Force General Hospital inside VAB. However, he was
immediately transferred to the Armed Forces of the Philippines
Medical Center (AFPMC)since there was no orthopedic doctor
available at PAFGH. From August 27, 1997 until February 11,
1998, he was confined therein. He was again hospitalized at
PAFGH from February 23, 1998 until March 22, 1998. He
presented one Navarro who said Completo was driving at an
unusually fast speed.
Albayda filed a complaint for physical injuries through reckless
imprudence against Completo. Albayda alleged that the
proximate cause of the incident which necessitated his stay in
the hospital for approximately seven (7) months was the
negligence of Completo who, at the time of the accident, was
in the employ of Abiad.
Completo filed a counter-charge of damage to property through
reckless imprudence against Albayda.
Completo alleged that, he was carefully driving the taxicab,
when suddenly he heard a strange sound from the rear right
side of the taxicab. When he stopped to investigate, he found
Albayda lying on the road and holding his left leg. He
immediately rendered assistance and brought Albayda to
PAFGH for emergency treatment. Completo also asserted that
he had already reduced his speed to twenty (20) kilometers per
hour even before reaching the intersection of 8th and 11th
Streets and that Albayda rode his bicycle at a very high speed,
causing him to suddenly lose control of the bicycle and hit the
rear door on the right side of the taxicab. Completo maintained
that Albayda had no cause of action. The accident and the
physical injuries suffered by Albayda were caused by his own
negligence.
ISSUES:
1) Whether or not it was Completo who caused the
collision/Whether or not it was Completo who was
negligent
2) Whether Abiad observed the diligence of a good
father of the family
HELD:
Yes. Completo was negligent. He was the one responsible
for the collision.
ON NEGLIGENCE
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It is a rule in negligence suits that the plaintiff has the burden of
proving by a preponderance of evidence the motorist's breach
in his duty of care owed to the plaintiff, that the motorist was
negligent in failing to exercise the diligence required to avoid
injury to the plaintiff, and that such negligence was the
proximate cause of the injury suffered.
Article 2176 of the CC provides that, that whoever by act or
omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no preexisting contractual
relation between the parties, is called a quasi-delict. In this
regard, the question of the motorist's negligence is a question
of fact.
It was proven, however, by a preponderance of evidence that
Completo failed to exercise reasonable diligence. He was
overspeeding at the time he hit Albayda's bicycle; he did not
slow down even when he approached the intersection. Such
negligence was the sole and proximate cause of the injuries
sustained by Albayda. It was proven that Albayda had the right
of way since he reached the intersection ahead of Completo.
The bicycle occupies a legal position that is at least equal to
that of other vehicles lawfully on the highway, and it is fortified
by the fact that usually more will be required of a motorist than
a bicyclist in discharging his duty of care to the other because
of the physical advantages the automobile has over the
bicycle. At the slow speed of ten miles per hour, a bicyclist
travels almost fifteen feet per second, while a car traveling at
only twenty-five miles per hour covers almost thirty-seven feet
per second, and split-second action may be insufficient to
avoid an accident. It is obvious that a motor vehicle poses a
greater danger of harm to a bicyclist than vice versa. The
physical advantages that the motor vehicle has over the
bicycle make it more dangerous to the bicyclist than vice versa.
ON THE OBSERVANCE OF DGFOF
Under Article 2180 of the Civil Code, the obligation imposed by
Article 2176 is demandable not only for one’s own acts or
omissions, but also for those persons for whom one is
responsible. Employers shall be liable for the damages caused
by their employees, but the employers’ responsibility shall
cease upon proof that they observed all the diligence of a good
father of the family in the selection and supervision of their
employees.
When an injury is caused by the negligence of an employee, a
legal presumption instantly arises that the employer was
negligent. This presumption may be rebutted only by a clear
showing on the part of the employer that he exercised the
diligence of a good father of a family in the selection and
supervision of his employee. If the employer successfully
overcomes the legal presumption of negligence, he is relieved
of liability. In other words, the burden of proof is on the
employer.
The responsibility of two or more persons who are liable for
quasi-delict is solidary. The civil liability of the employer for the
negligent acts of his employee is also primary and direct,
owing to his own negligence in selecting and supervising his
employee. The civil liability of the employer attaches even if the
employer is not inside the vehicle at the time of the collision.
In the selection of prospective employees, employers are
required to examine them as to their qualifications, experience,
and service records. On the other hand, with respect to the
supervision of employees, employers should formulate
standard operating procedures, monitor their implementation,
and impose disciplinary measures for breaches thereof. To
establish these factors in a trial involving the issue of vicarious
liability, employers must submit concrete proof, including
documentary evidence.
Abiad testified that before he hired Completo, he required the
latter to show his bio-data, NBI clearance, and driver’s license.
Abiad likewise stressed that Completo was never involved in a
vehicular accident prior to the instant case, and that, as
operator of the taxicab, he would wake up early to personally
check the condition of the vehicle before it is used.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
The protestation of Abiad to escape liability is short of the
diligence required under the law. Abiad’s evidence consisted
entirely of testimonial evidence, and the unsubstantiated and
self-serving testimony of Abiad was insufficient to overcome
the legal presumption that he was negligent in the selection
and supervision of his driver.
11. ALFREDO P. PACIS and CLEOPATRA D. PACIS vs.
JEROME JOVANNE MORALES
FACTS: Spouses Pacis are the parents of Alfred Dennis Pacis,
Jr. (Alfred), a 17-year old student who died in a shooting
incident inside the Top Gun Firearms and Ammunitions Store
(gun store) in Baguio City. Respondent Morales is the owner
of the gun store.
Morales was in Manila at the time of the accident. His
employee Armando Jarnague, who was the regular caretaker
of the gun store left earlier and requested sales agents
Matibag and Herbolario to look after the gun store while he and
Morales were away. Jarnague entrusted to Matibag and
Herbolario a bunch of keys used in the gun store which
included the key to the drawer where the fatal gun was kept.
It appears that Matibag and Herbolario later brought out the
gun from the drawer and placed it on top of the table.
Attracted by the sight of the gun, the young Alfred Dennis
Pacis got hold of the same. Matibag asked Alfred Dennis
Pacis to return the gun. The latter followed and handed the
gun to Matibag. It went off, the bullet hitting the young Alfred
in the head.
Morales maintains that he is not guilty of negligence and lack
of due care as he did not fail to observe the diligence of a
good father of a family. He submits that he kept the firearm in
one of his table drawers, which he locked and such is already
an indication that he took the necessary diligence and care
that the said gun would not be accessible to anyone. He puts
[sic] that his store is engaged in selling firearms and
ammunitions. Such items which are per se dangerous are
kept in a place which is properly secured in order that the
persons coming into the gun store would not be able to take
hold of it unless it is done intentionally, such as when a
customer is interested to purchase any of the firearms,
ammunitions and other related items, in which case, he may
be allowed to handle the same.
ISSUE: Whether or not Morales can be held civilly liable to
petitioners for failure to exercise diligence.
RULING: Yes. In this case, instead of enforcing their claim for
damages in the homicide case filed against Matibag,
petitioners opted to file an independent civil action for damages
against respondent whom they alleged was Matibags
employer. Petitioners based their claim for damages under
Articles 2176 and 2180 of the Civil Code.
Unlike the subsidiary liability of the employer under Article 103
of the Revised Penal Code, the liability of the employer, or any
person for that matter, under Article 2176 of the Civil Code is
primary and direct, based on a persons own negligence. Article
2176 states:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is
called quasi-delict and is governed by the provisions of this
Chapter.
This case involves the accidental discharge of a firearm inside
a gun store. Under PNP Circular No. 9, entitled the Policy on
Firearms and Ammunition Dealership/Repair, a person who is
in the business of purchasing and selling of firearms and
ammunition must maintain basic security and safety
requirements of a gun dealer, otherwise his License to Operate
Dealership will be suspended or canceled.[14]
Indeed, a higher degree of care is required of someone who
has in his possession or under his control an instrumentality
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extremely dangerous in character, such as dangerous
weapons or substances. Such person in possession or control
of dangerous instrumentalities has the duty to take exceptional
precautions to prevent any injury being done thereby. Unlike
the ordinary affairs of life or business which involve little or no
risk, a business dealing with dangerous weapons requires the
exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be
knowledgeable about firearms safety and should have known
never to keep a loaded weapon in his store to avoid
unreasonable risk of harm or injury to others. Respondent has
the duty to ensure that all the guns in his store are not loaded.
Firearms should be stored unloaded and separate from
ammunition when the firearms are not needed for ready-
access defensive use.[16] With more reason, guns accepted by
the store for repair should not be loaded precisely because
they are defective and may cause an accidental discharge
such as what happened in this case. Respondent was clearly
negligent when he accepted the gun for repair and placed it
inside the drawer without ensuring first that it was not loaded.
In the first place, the defective gun should have been stored in
a vault. Before accepting the defective gun for repair,
respondent should have made sure that it was not loaded to
prevent any untoward accident. Indeed, respondent should
never accept a firearm from another person, until the cylinder
or action is open and he has personally checked that the
weapon is completely unloaded.[17] For failing to insure that the
gun was not loaded, respondent himself was negligent.
Furthermore, it was not shown in this case whether respondent
had a License to Repair which authorizes him to repair
defective firearms to restore its original composition or
enhance or upgrade firearms.
Clearly, respondent did not exercise the degree of care and
diligence required of a good father of a family, much less the
degree of care required of someone dealing with dangerous
weapons, as would exempt him from liability in this case.
12. Taylor vs. Manila Railroad
FACTS: David Taylor was 15 years old at the time he received
the injuries that gave rise to this complaint.
On September 30, 1905, David and Manuel Claparols, about
12 years of age, went to the power plant owned by the Manila
Railroad to visit one Murphy, an employee. Not being able to
find Murphy on inquiry, the boys for curiosity wandered around
the premises and reached the place where the company
dumped in the cinders and ashes from its furnaces.
There, they found some 20-30 fulminating caps scattered on
the ground. The caps are intended for explosion of dynamites,
and have in themselves explosive power. The boys picked up
the caps and carried them home. Along the way they met
Jessie Adrian, a 9-year old girl. The 3 went to Manuel’s house
and performed a little experiment. They opened the caps and
found a yellowish substance. They lighted a match and applied
it on the contents. The girl became frightened and ran away.
The substance exploded, causing a slight cut on Jessie’s neck,
burns on Manuel, and loss of David’s eyesight. Plaintiff sued
the company for damages.
ISSUE: WON Manila Railroad could be faulted for exposing
the children to the harmful substances.
Held: 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, 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.
The evidence tends to disclose that these caps or detonators
were willfully and knowingly thrown by the company or its
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
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.
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.
Children 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.
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.
As was said in case of Railroad Co. vs. Stout, "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
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capacity only, and this is to be determined in each case by the
circumstances of the case." 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. 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 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.
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.
13. CULION ICE, FISH AND ELECTRIC vs. PHILS. MOTORS
FACTS: Plaintiff was represented by H.D. Cranston and was at
same time, the registered owner of the yacht
called Gwendoline.
In January, 1925, Cranston decided to change the engine of
Gwendoline from a gasoline to a crude oil burner to cutback
the cost of running the boat. Thus, he inquired from the
defendant, Philippine Motors Corporation who agreed to do the
job, with the understanding that payment should be made upon
completion of the work.
The Philippine Motors Corporation is engaged in business as
an automobile agency, but, under its charter, it had authority to
deal in all sorts of machinery engines and motors, as well as to
build, operate, buy and sell the same and the equipment
thereof.
As a result, Quest the manager of Phil Motors, together with
Cranston, visited the Gwendoline and the work of effecting the
change in the engine was thereafter conducted under the
supervision of Quest with the help of the members of the crew
of Gwendoline employed under the plaintiff.
Upon preliminary inspection of the engine, they felt the need to
install a new carburetor. After installation, the engine was tried
with gasoline as fuel. The result of this experiment was
satisfactory.
In the course of the preliminary work upon the carburetor and
its connections, it was observed that the carburetor was
flooding, and that the gasoline was trickling freely from the
lower part to the carburetor to the floor. This fact was called to
Quest's attention, but he did not pay much attention to it
instead he said that when the engine would start to run, the
flooding would disappear.
After some adjustments had been made the boat was taken
out into the bay for a trial run. The first part of the course was
covered without any inconvenience, other than the fact that the
engine stopped a few times, owing no doubt to the use of an
improper mixture of fuel. But a moment later, a fire broke in the
cylinder chamber. This caused a flame to shoot back into the
carburetor which caused massive flames and burned the whole
yacht
ISSUE: WON, the loss of the boat was due to the negligence
of Quest, the manager of the Defendant. YES
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
HELD: The loss of this boat was chargeable to the negligence
and lack of skill of Quest.
It must be remembered that when a person holds himself out
as being competent to do things requiring professional skill, he
will be held liable for negligence if he fails to exhibit the care
and skill of one ordinarily skilled in the particular work which he
attempts to do. The proof shows that Quest had had ample
experience in fixing the engines of automobiles and tractors,
but it does not appear that he was experienced in the doing of
similar work on boats. For this reason, possibly the dripping of
the mixture form the tank on deck and the flooding of the
carburetor did not convey to his mind an adequate impression
of the danger of fire. But a person skilled in that particular sort
of work would, we think have been sufficiently warned from
those circumstances to cause him to take greater and
adequate precautions against the danger. In other words
Quest did not use the skill that would have been exhibited by
one ordinarily expert in repairing gasoline engines on boats.
There was here, in our opinion, on the part of Quest, a
blameworthy antecedent inadvertence to possible harm, and
this constitutes negligence. The burning of
the Gwendoline may be said to have resulted from accident,
but this accident was in no sense an unavoidable accident. It
would not have occured but for Quest's carelessness or lack of
skill. The test of liability is not whether the injury was accidental
in a sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this
accident is chargeable to lack of skill or negligence in effecting
the changes which Quest undertook to accomplish; and even
supposing that our theory as to the exact manner in which the
accident occurred might appear to be in some respects
incorrect, yet the origin of the fire in not so inscrutable as to
enable us to say that it was casus fortuitus.
14. VDA DE BATACLAN VS MEDINA G.R. NO. L-10126
FACTS: On September 13, 1952, shortly after midnight, bus
no. 30 of the Medina Transportation, operated by its owner
Mariano Medina under a CPC, left the town of Amadeo, Cavite,
on its way to Pasay City, driven by its regular chauffeur,
Conrado Saylon. There were about 18 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 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 one of the front tires burst and the vehicle began to
zig-zag until it fell into a canal on the right side of the road and
turned turtle. Some managed to leave the bus, 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 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
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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, brought the present suit to recover from Mariano
Medina damages.
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.
ISSUE: Whether or not defendant is liable
HELD: YES. Defendant is liable.
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.
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, particularly, Articles
1733, 1759 and 1763.
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.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
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.
15. PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL vs. INTERMEDIATE APPELLATE COURT and
LEONARDO DIONISIO
FACTS: In the early morning of 15 November 1975 — at about
1:30 a.m. — private respondent Leonardo Dionisio was on his
way home — he lived in 1214-B Zamora Street, Bangkal,
Makati — from a cocktails-and-dinner meeting with his boss,
the general manager of a marketing corporation. During the
cocktails phase of the evening, Dionisio had taken "a shot or
two" of liquor. Dionisio was driving his Volkswagen car and had
just crossed the intersection of General Lacuna and General
Santos Streets at Bangkal, Makati, not far from his home, and
was proceeding down General Lacuna Street, when his car
headlights (in his allegation) suddenly failed. He switched his
headlights on "bright" and thereupon he saw a Ford dump
truck looming some 2-1/2 meters away from his car. The dump
truck, owned by and registered in the name of petitioner
Phoenix Construction Inc. ("Phoenix"), was parked on the right
hand side of General Lacuna Street (i.e., on the right hand side
of a person facing in the same direction toward which
Dionisio's car was proceeding), facing the oncoming traffic.
The dump truck was parked askew (not parallel to the street
curb) in such a manner as to stick out onto the street, partly
blocking the way of oncoming traffic. There were no lights nor
any so-called "early warning" reflector devices set anywhere
near the dump truck, front or rear. The dump truck had earlier
that evening been driven home by petitioner Armando U.
Carbonel, its regular driver, with the permission of his employer
Phoenix, in view of work scheduled to be carried out early the
following morning, Dionisio claimed that he tried to avoid a
collision by swerving his car to the left but it was too late and
his car smashed into the dump truck. As a result of the
collision, Dionisio suffered some physical injuries including
some permanent facial scars, a "nervous breakdown" and loss
of two gold bridge dentures.
Dionisio commenced an action for damages claiming that the
legal and proximate cause of his injuries was the negligent
manner in which Carbonel had parked the dump truck
entrusted to him by his employer Phoenix.
ISSUE: Whether or not the negligence of Carboenl is the
proximate cause of the accident.
RULING: Yes.
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Private respondent Dionisio was negligent the night of the
accident. He was hurrying home that night and driving faster
than he should have been. Worse, he extinguished his
headlights at or near the intersection of General Lacuna and
General Santos Streets and thus did not see the dump truck
that was parked askew and sticking out onto the road lane.
Nonetheless, the legal and proximate cause of the accident
and of Dionisio's injuries was the wrongful — or negligent
manner in which the dump truck was parked in other words,
the negligence of petitioner Carbonel. That there was a
reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's
injuries on the other hand, is quite clear. Put in a slightly
different manner, the collision of Dionisio's car with the dump
truck was a natural and foreseeable consequence of the truck
driver's negligence.
We believe, secondly, that the truck driver's negligence far
from being a "passive and static condition" was rather an
indispensable and efficient cause. The collision between the
dump truck and the private respondent's car would in an
probability not have occurred had the dump truck not been
parked askew without any warning lights or reflector devices.
The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General
Lacuna Street and for having so created this risk, the truck
driver must be held responsible. In our view, Dionisio's
negligence, although later in point of time than the truck
driver's negligence and therefore closer to the accident, was
not an efficient intervening or independent cause. What the
Petitioners describe as an "intervening cause" was no more
than a foreseeable consequent manner which the truck driver
had parked the dump truck. In other words, the petitioner truck
driver owed a duty to private respondent Dionisio and others
similarly situated not to impose upon them the very risk the
truck driver had created. Dionisio's negligence was not of an
independent and overpowering nature as to cut, as it were, the
chain of causation in fact between the improper parking of the
dump truck and the accident, nor to sever the juris vinculum of
liability
We hold that private respondent Dionisio's negligence was
"only contributory," that the "immediate and proximate cause"
of the injury remained the truck driver's "lack of due care" and
that consequently respondent Dionisio may recover damages
though such damages are subject to mitigation by the courts
(Article 2179, Civil Code of the Philippines).
Petitioner Carbonel's proven negligence creates a presumption
of negligence on the part of his employer Phoenix in
supervising its employees properly and adequately. The
circumstance that Phoenix had allowed its truck driver to bring
the dump truck to his home whenever there was work to be
done early the following morning, when coupled with the failure
to show any effort on the part of Phoenix to supervise the
manner in which the dump truck is parked when away from
company premises, is an affirmative showing of culpa in
vigilando on the part of Phoenix.
16. Fernando vs. CA
FACTS: On November 7, 1975, BibianoMorta, market master
of the Agdao Public Market, filed a requisition request with the
Chief of Property of the City Treasurer's Office for the re-
emptying of the septic tank in Agdao. An invitation to bid was
issued to Aurelio Bertulano, LitoCatarsa, Feliciano Bascon,
Federico Bolo and Antonio Suñer, Jr. Bascon won the bid.
On November 26, 1975 Bascon was notified and he signed the
purchase order. However, before such date, specifically
on November 22, 1975 bidder Bertulano with four other
companions namely Joselito Garcia, William Liagoso, Alberto
Fernando and Jose Fajardo, Jr. were found dead inside the
septic tank.
The City Engineer's office investigated the case and learned
they entered the septic tank without clearance from it nor with
the knowledge and consent of the market master.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
Since the septic tank was found to be almost empty, they were
presumed to be the ones who did the re-emptying.
Dr. Juan Abear of the City Health Office found them to have
died from "asphyxia" - diminution of oxygen supply in the body
and intake of toxic gas, which, in this case, was sulfide gas
produced from the waste matter inside the septic tank.
Petitioners filed a complaint for damages. RTC dismissed the
complaint. CA sustained the dismissal. Hence, the present
case.
ISSUE/s:1. Is the respondent Davao City guilty of negligence
in the case at bar? NO.
2. If so, is such negligence the immediate and proximate cause
of deaths of the victims hereof? NO.
HELD: Petitioners fault the city government of Davao for failing
to clean a septic tank for the period of 19 years resulting in an
accumulation of hydrogen sulfide gas which killed the laborers.
They contend that such failure was compounded by the fact
that there was no warning sign of the existing danger and no
efforts exerted by the public respondent to neutralize or render
harmless the effects of the toxic gas. They submit that the
public respondent's gross negligence was the proximate cause
of the fatal incident.
We do not subscribe to this view. While it may be true that the
public respondent has been remiss in its duty to re-empty the
septic tank annually, such negligence was not a continuing
one. Upon learning from the report of the market master about
the need to clean the septic tank of the public toilet in Agdao
Public Market, the public respondent immediately responded
by issuing invitations to bid for such service. Thereafter, it
awarded the bid to the lowest bidder, Mr. Feliciano Bascon
(TSN, May 24, 1983, pp. 22-25). The public respondent,
therefore, lost no time in taking up remedial measures to meet
the situation. It is likewise an undisputed fact that despite the
public respondent's failure to re-empty the septic tank since
1956, people in the market have been using the public toilet for
their personal necessities but have remained unharmed.
The absence of any accident was due to the public
respondent's compliance with the sanitary and plumbing
specifications in constructing the toilet and the septic tank
(TSN, November 4, 1983, p. 51). Hence, the toxic gas from the
waste matter could not have leaked out because the septic
tank was air-tight (TSN, ibid, p. 49). The only indication that the
septic tank in the case at bar was full and needed emptying
was when water came out from it (TSN, September 13, 1983,
p. 41). Yet, even when the septic tank was full, there was no
report of any casualty of gas poisoning despite the presence of
people living near it or passing on top of it or using the public
toilet for their personal necessities.
It would appear that an accident such as toxic gas leakage
from the septic tank is unlikely to happen unless one removes
its covers. The accident in the case at bar occurred because
the victims on their own and without authority from the public
respondent opened the septic tank. Considering the nature of
the task of emptying a septic tank especially one which has not
been cleaned for years, an ordinarily prudent person should
undoubtedly be aware of the attendant risks. The victims are
no exception; more so with Mr. Bertulano, an old hand in this
kind of service, who is presumed to know the hazards of the
job. His failure, therefore, and that of his men to take
precautionary measures for their safety was the proximate
cause of the accident.
17. BENGUET ELECTRIC COOP vs. CA
Facts: On 14 January 1985 at around 7:50 in the morning,
Jose Bernardo owner of a stall at the Baguio City meat for 5
years, went to the market together with other meat vendors
went out of their stalls to meet a jeepney loaded with
slaughtered pigs in order to select the meat they would sell for
the day. Jose was the very first to reach the parked jeepney.
Grasping the handlebars at the rear entrance of the vehicle,
and as he was about to raise his right foot to get inside, Jose
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suddenly stiffened and trembled as though suffering from an
epileptic seizure. Romeo Pimienta who saw Jose thought he
was merely joking but noticed almost in disbelief that he was
already turning black. In no time the other vendors rushed to
Jose and they discovered that the antenna of the jeepney
bearing the pigs had gotten entangled with an open electric
wire at the top of the roof of a meat stall. Pimienta quickly got
hold of a broom and pried the antenna loose from the open
wire. But shortly after, Jose released his hold on the
handlebars of the jeep only to slump to the ground. He died
shortly in the hospital. Cause of his death was "cardio-
respiratory arrest secondary to massive brain congestion with
petheccial hemorrhage, brain bilateral pulmonary edema and
congestion and endocardial petecchial hemorrhage and
dilation (history of electrocution)."
On 6 February 1985 Caridad O. Bernardo, widow of Jose
Bernardo, and their minor children filed a complaint against
BENECO for a sum of money and damages arising from the
electrocution of Jose Bernardo. In the same civil action,
BENECO filed a third-party complaint against Guillermo
Canave, Jr., the jeepney owner.
Issue: WON, the death of Jose was directly attributable to the
fault or negligence of BENECO. YES!
Held: There is no question that as an electric cooperative
holding the exclusive franchise in supplying electric power to
the towns of Benguet province, its primordial concern is not
only to distribute electricity to its subscribers but also to ensure
the safety of the public by the proper maintenance and upkeep
of its facilities. It is clear to us then that BENECO was grossly
negligent in leaving unprotected and uninsulated the splicing
point between the service drop line and the service entrance
conductor, which connection was only eight (8) feet from the
ground level, in violation of the Philippine Electrical Code.
BENECO's contention that the accident happened only on
January 14, 1985, around seven (7) years after the open wire
was found existing in 1978, far from mitigating its culpability,
betrays its gross neglect in performing its duty to the public. By
leaving an open live wire unattended for years, BENECO
demonstrated its utter disregard for the safety of the public.
Indeed, Jose Bernardo's death was an accident that was
bound to happen in view of the gross negligence of BENECO.
BENECO theorizes in its defense that the death of Jose
Bernardo could be attributed to the negligence of Canave, Jr.,
in parking his jeepney so close to the market stall which was
neither a parking area nor a loading area, with his antenna so
high as to get entangled with an open wire above the
Dimasupil store. But this line of defense must be discarded.
Canave's act of parking in an area not customarily used for that
purpose was by no means the independent negligent act
adverted to by BENECO. Canave was well within his right to
park the vehicle in the said area where there was no showing
that any municipal law or ordinance was violated nor that there
was any foreseeable danger posed by his act. One thing
however is sure, no accident would have happened had
BENECO installed the connections in accordance with the
prescribed vertical clearance of fifteen (15) feet.
18. CASE: MERCURY DRUG VS BAKING G.R. NO. 156037
FACTS: Sebastian M. Baking, respondent, went to the clinic of
Dr. Cesar Sy for a medical check-up. On the following day,
after undergoing various laboratory examinations and
urinalysis, Dr. Sy found that respondent’s blood sugar and
triglyceride were above normal levels. Dr. Sy then gave
respondent two medical prescriptions – Diamicron for his blood
sugar and Benalize tablets for his triglyceride.
Respondent then proceeded to petitioner Mercury Drug
Corporation (Alabang Branch) to buy the prescribed medicines.
However, the saleslady misread the prescription for Diamicron
as a prescription for Dormicum. Thus, what was sold to
respondent was Dormicum, a potent sleeping tablet.
Unaware that what was given to him was the wrong medicine,
respondent took one pill of Dormicum on three consecutive
days.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
On the third day he took the medicine, respondent figured in a
vehicular accident. The car he was driving collided with the car
of one Josie Peralta. Respondent fell asleep while driving. He
could not remember anything about the collision nor felt its
impact.
Petitioner contends that the proximate cause of the accident
was respondent’s negligence in driving his car.
ISSUE: Whether petitioner was negligent, and if so, whether
such negligence was the proximate cause of respondent’s
accident
HELD: YES. Petitioner was negligent and such negligence
was the proximate cause of respondent’s accident.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
To sustain a claim based on the above provision, the following
requisites must concur: (a) damage suffered by the plaintiff; (b)
fault or negligence of the defendant; and, (c) connection of
cause and effect between the fault or negligence of the
defendant and the damage incurred by the plaintiff.
A.) On the damage suffered by the plaintiff -There is no
dispute that respondent suffered damages.
B.) On the fault or negligence of the defendant-It is
generally recognized that the drugstore business is
imbued with public interest. The health and safety of
the people will be put into jeopardy if drugstore
employees will not exercise the highest degree of
care and diligence in selling medicines.
Obviously, petitioner’s employee was grossly
negligent in selling to respondent Dormicum, instead
of the prescribed Diamicron. Considering that a fatal
mistake could be a matter of life and death for a
buying patient, the said employee should have been
very cautious in dispensing medicines. She should
have verified whether the medicine she gave
respondent was indeed the one prescribed by his
physician. The care required must be commensurate
with the danger involved, and the skill employed must
correspond with the superior knowledge of the
business which the law demands.
C.) connection of cause and effect between the fault or
negligence of the defendant and the damage incurred
by the plaintiff-
Proximate cause is defined as any cause that
produces injury in a natural and continuous sequence,
unbroken by any efficient intervening cause, such that
the result would not have occurred otherwise.
Proximate cause is determined from the facts of each
case, upon a combined consideration of logic,
common sense, policy, and precedent.5
Here, the vehicular accident could not have occurred
had petitioner’s employee been careful in reading Dr.
Sy’s prescription. Without the potent effects of
Dormicum, a sleeping tablet, it was unlikely that
respondent would fall asleep while driving his car,
resulting in a collision.
Complementing Article 2176 is Article 2180 of the
same Code which states:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for one’s own acts or omissions,
but also for those of persons for whom one is
responsible.
xxx
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The owners and managers of an establishment or
enterprise are likewise responsible for damages
caused by their employees in the service of the
branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by
their employees and household helpers acting within
the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
xxx
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed the diligence of a good father of a family to
prevent damage.
It is thus clear that the employer of a negligent
employee is liable for the damages caused by the
latter. When an injury is caused by the negligence of
an employee, there instantly arises a presumption of
the law that there has been negligence on the part of
the employer, either in the selection of his employee
or in the supervision over him, after such selection.
The presumption, however, may be rebutted by a
clear showing on the part of the employer that he has
exercised the care and diligence of a good father of a
family in the selection and supervision of his
employee.6 Here, petitioner's failure to prove that it
exercised the due diligence of a good father of a
family in the selection and supervision of its employee
will make it solidarily liable for damages caused by
the latter.
19. PILIPINAS BANK vs. COURT OF APPEALS AND
FLORENCIO REYES
FACTS: As payments for the purchased shoe materials and
rubber shoes, Florencio Reyes issued postdated checks to
Winner Industrial Corporation and Vicente Tui with due dates
on October 10 and 12, 1979, respectively.
To cover the face value of the checks, Reyes requested PCIB
Money Shop's manager Mike Potenciano to effect the
withdrawal of P32,000.00 from his savings account therein and
have it deposited with his current account with Pilipinas Bank.
Roberto Santos was requested to make the deposit. In
depositing in the name of FLORENCIO REYES, he inquired
from the teller the current account number of Florencio Reyes
to complete the deposit slip he was accomplishing. He was
informed that it was "815" and so this was the same current
account number he placed on the deposit slip below the
depositor's name FLORENCIO REYES. Nothing that the
account number coincided with the name Florencio, Efren
Alagasi, then Current Account Bookkeeper of Pilipinas Bank,
thought it was for Florencio Amador who owned the listed
account number. He, thus, posted the deposted in the latter's
account not noticing that the depositor's surname in the deposit
slip was REYES.
When the checks were presented for payment three times but
were dishonored for lack of sufficient funds. Furious over the
incident, Florencio Reyes mmediately proceeded to the bank
and urged an immediate verification of his account.
Upon verification, the bank noticed the error. The P32,000.00
deposit posted in the account of Florencio Amador was
immediately transferred to the account of Reyes upon being
cleared by Florencio Amador that he did not effect a deposit in
the amount of P32,000.00. The transfer having been effected,
the bank then honored the October 12, 1979, check.
ISSUE: Whether or not the proximate cause of the injury is the
negligence of petitioner’s employee.
RULING: Yes. For Article 2179 of the Civil Code to apply, it
must be established that private respondent's own negligence
was the immediate and proximate cause of his injury. The
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
concept of proximate cause is well defined in our corpus of
jurisprudence as "any cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause,
produces the result complained of and without which would not
have occurred and from which it ought to have been forseen or
reasonably anticipated by a person of ordinary case that the
injury complained of or some similar injury, would result
therefrom as a natural and probable consequence." 4 In the
case at bench, the proximate cause of the injury is the
negligence of petitioner's employee in erroneously posting the
cash deposit of private respondent in the name of another
depositor who had a similar first name. As held by the trial
court:
xxx xxx xxx
Applying the test, the bank employee is, on that basis, deemed
to have failed to exercise the degree of care required in the
performance of his duties. As earlier stated, the bank
employee posted the cash deposit in the account of Florencio
Amador from his assumption that the name Florencio
appearing on the ledger without, however, going through the
full name, is the same Florencio stated in the deposit slip. He
should have continuously gone beyond mere assumption,
which was proven to be erroneous, and proceeded with clear
certainty, considering the amount involved and the
repercussions it would create on the totality of the person
notable of which is the credit standing of the person involved
should a mistake happen. The checks issued by the plaintiff in
the course of his business were dishonored by the bank
because the ledger of Florencio Reyes indicated a balance
insufficient to cover the face value of checks.
20. FAR EASTERN VS. CA
FACTS:On June 20, 1980, the M/V PAVLODAR, flying under
the flagship of the USSR, owned and operated by the Far
Eastern Shipping Company (FESC for brevity's sake), arrived
at the Port of Manila from Vancouver, British Columbia at
about 7:00 o'clock in the morning.
The vessel was assigned Berth 4 of the Manila International
Port, as its berthing space. Captain Roberto Abellana was
tasked by the Philippine Port Authority to supervise the
berthing of the vessel. Appellant SenenGavino was assigned
by the Appellant Manila Pilots' Association (MPA for brevity's
sake) to conduct docking maneuvers for the safe berthing of
the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and
stationed himself in the bridge, with the master of the vessel,
Victor Kavankov, beside him. After a briefing of Gavino by
Kavankov of the particulars of the vessel and its cargo, the
vessel lifted anchor from the quarantine anchorage and
proceeded to the Manila International Port. The sea was calm
and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the
Tondo North Harbor) one-half mile from the pier, Gavino
ordered the engine stopped. When the vessel was already
about 2,000 feet from the pier, Gavino ordered the anchor
dropped. Kavankov relayed the orders to the crew of the
vessel on the bow. The left anchor, with two (2) shackles, were
dropped. However, the anchor did not take hold as expected.
The speed of the vessel did not slacken. A commotion ensued
between the crew members. A brief conference ensued
between Kavankov and the crew members. When Gavino
inquired what was all the commotion about, Kavankov assured
Gavino that there was nothing to it.
After Gavino noticed that the anchor did not take hold, he
ordered the engines half-astern. Abellana, who was then on
the pier apron, noticed that the vessel was approaching the
pier fast.Kavankov likewise noticed that the anchor did not take
hold. Gavino thereafter gave the "full-astern" code. Before the
right anchor and additional shackles could be dropped, the
bow of the vessel rammed into the apron of the pier causing
considerable damage to the pier. The vessel sustained
damage too,
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Kavankov filed his sea protest andGavino submitted his report
to the Chief Pilot who referred the report to the Philippine Ports
Authority. Abellana likewise submitted his report of the
incident.
Per contract and supplemental contract of the Philippine Ports
Authority and the contractor for the rehabilitation of the
damaged pier, the same cost the Philippine Ports Authority
more than Php1M.
On January 10, 1983, the Philippine Ports Authority (PPA, for
brevity), through the Solicitor General, fileda complaint for a
sum of money against Far Eastern Shipping Co., Capt. Senen
C. Gavino and the Manila Pilots' Associationpraying that the
defendants therein be held jointly and severally liable to pay
the plaintiff actual and exemplary damages plus costs of suit.
RTC ordered defendants solidarily liable to PPA for actual
damages and costs of suit. CA affirmed but ruled that there is
no EE-ER relationship. Hence, this petition.
ISSUE/s:1) Would the owner of the vessel be liable if the
damage is caused by the concurrent negligence of the master
of the vessel and the pilot under a compulsory pilotage?
HELD: As a general rule, negligence in order to render a
person liable need not be the sole cause of an injury. It is
sufficient that his negligence, concurring with one or more
efficient causes other than plaintiff’s, is the proximate cause of
the injury. Accordingly, where several causes combine to
produce injuries, a person is not relieved from liability because
he is responsible for only one of them, it being sufficient that
the negligence of the person charged with injury is an efficient
cause without which the injury would not have resulted to as
great an extent, and that such cause is not attributable to the
person injured.
CONCURRENT NEGLIGENCE:
It is no defense to one of the concurrent tortfeasors that the
injury would not have resulted from his negligence alone,
without the negligence or wrongful acts of the other concurrent
tortfeasor. Where several causes producing an injury are
concurrent and each is an efficient cause without which the
injury would not have happened, the injury may be attributed to
all or any of the causes and recovery may be had against any
or all of the responsible persons although under the
circumstances of the case, it may appear that one of them was
more culpable, and that the duty owed by them to the injured
person was not the same. No actor’s negligence ceases to be
a proximate cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is responsible for
the entire result and is liable as though his acts were the sole
cause of the injury.
Contributory Negligence – where both the plaintiff and the
defendant are negligent, the damages to be awarded may be
reduced by the courts (Thermochem Inc. v. Naval, G.R. No.
131541, Oct. 20, 2000)
REMOTE CAUSE
21. GABETO VS. ARANETA
FACTS: In 1918, Basilio Ilano and Proceso Gayetano took a
carromata with a view to go to a cockpit. When the driver of the
carromata had started in the direction indicated, the defendant,
Agaton Araneta, stopped the horse, at the same time
protesting to the driver that he himself had called this
carromata first. The driver, Julio Pagnaya, replied that he had
not heard or seen the call of Araneta. Pagnaya pulled on the
reins of the bridle to free the horse from the control of Araneta,
in order that the vehicle might pass on. Owing to the looseness
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
of the bridle on the horse's head or to the rottenness of the
material of which it was made, the bit came out of the horse's
mouth; and it became necessary for the driver to get out in
order to find the bridle.
While he was thus engaged, the horse became disturbed and
moved forward, in doing which he pulled one of the wheels of
the carromata up on the sidewalk and pushed Julio Pagnaya
over. After going a few meters further the side of the carromata
struck a police telephone box which was fixed to a post on the
sidewalk, upon which the box came down with a crash and
frightened the horse to such an extent that he set out at full
speed up the street.
Meanwhile one of the passengers, Ilano, had alighted but the
other, Gayetano, had unfortunately retained his seat, and after
the runaway horse had proceeded up the street Gayetano
jumped or fell from the rig, and in so doing received injuries
from which he soon died.
ISSUE: W/N the proximate cause of the accident was the
stopping of the horse by Araneta. NO.
RATIO: The stopping of the rig by Araneta was too remote
from the accident that presently ensued to be considered the
legal or proximate cause thereof. Moreover, by getting out and
taking his post at the head of the horse, the driver was the
person primarily responsible for the control of the animal, and
the defendant cannot be charged with liability for the accident
resulting from the action of the horse thereafter. The evidence
indicates that the bridle was old, and the leather of which it was
made was probably so weak as to be easily broken. According
to the witnesses for the defendant, it was Julio who jerked the
rein, thereby causing the bit to come out of the horse's mouth;
and that after alighting, led the horse over to the curb, and
proceeded to fix the bridle; and that in so doing the bridle was
slipped entirely off, when the horse, feeling himself free from
control, started to go away as previously stated.
22. MANILA ELECTRIC COMPANY VS. REMOQUILLO
“Media Agua” A canopy over a window is called media agua.
In ancestral Filipino houses, the traditional media agua is a
scallop-bordered cloth; in a bahay kubo, it’s a nipa push-out or
awning. In modern houses, it could be as simple as a ledge
shading the window
FACTS:
On August 22, 1950, Efren Magno went to the 3-story house of
his stepbrother Antonio Peñaloza, located on Rodriguez
Lanuza Street, Manila, to repair a “media agua” said to be in a
leaking condition. The “media agua” was just below the window
of the third story. Standing on said “media agua”, Magno
received from his son thru that window a 3’ X 6’ galvanized iron
sheet to cover the leaking portion. He turned around and in so
doing the lower end of the iron sheet came into contact with
the electric wire of the Manila Electric Company which strung
parallel to the edge of the “media agua” and 2 1/2 feet from it,
causing his death by electrocution.
His widow and children fled suit to recover damages from the
company. After hearing, the trial court rendered judgment in
their favor. On appeal to the Court of Appeals, the latter
affirmed the judgment. Pertinent decision is hereby quoted, to
viz,
“The electric wire in question was an exposed, uninsulated
primary wire stretched between poles on the street and
carrying a charge of 3,600 volts. It was installed there some
two years before Peñaloza’s house was constructed. The
record shows that during the construction of said house a
similar incident took place, although fortunately with much less
tragic consequences. A piece of wood which a carpenter was
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holding happened to come in contact with the same wire,
producing some sparks. The owner of the house forthwith
complained to Defendant about the danger which the wire
presented, and as a result Defendant moved one end of the
wire farther from the house by means of a brace, but left the
other end where it was.
“..the distance from the electric wire to the edge of the ‘media
agua’ on which the deceased was making repairs was only 30
inches or 2 1/2 feet. Regulations of the City of Manila required
that ‘all wires be kept three feet from the building.’ Appellant
contends that in applying said regulations to the case at bar
the reckoning should not be from the edge of the ‘media agua’
but from the side of the house and that, thus measured, the
distance was almost 7 feet, or more then the minimum
prescribed. This contention is manifestly groundless, for not
only is a ‘media agua’ an integral part of the building to which it
is attached but to exclude it in measuring the distance would
defeat the purpose of the regulation. Appellant points out,
nevertheless, that even assuming that the distance, within the
meaning of the city regulations, should be measured from the
edge of the ‘media agua’, the fact that in the case of the house
involved herein such distance was actually less than 3 feet was
due to the fault of the owner of said house, because the city
authorities gave him a permit to construct a ‘media agua’ only
one meter or 39 1/2 inches wide, but instead he built one
having a width of 65 3/4 inches, 17 3/8 inches more than the
width permitted by the authorities, thereby reducing the
distance to the electric wire to less than the prescribed
minimum of 3 feet.
“It is a fact that the owner of the house exceeded the limit fixed
in the permit given to him by the city authorities for the
construction of the ‘media agua’, and that if he had not done so
Appellants wire would have been 11 3/8 (inches) more than the
required distance of three feet from the edge of the ‘media
agua’. It is also a fact, however, that after the ‘media agua’ was
constructed the owner was given a final permit of occupancy of
the house.
“The wire was an exposed, high tension wire carrying a load of
3,600 volts. There was, according to Appellant, no insulation
that could have rendered it safe, first, because there is no
insulation material in commercial use for such kind of wire; and
secondly, because the only insulation material that may be
effective is still in the experimental stage of development and,
anyway, its costs would be prohibitive… ”
The theory followed by the appellate court in finding for the
Plaintiff is that it was the company that was at fault and was
guilty of negligence because although the electric wire in
question had been installed long before the construction of the
house and in accordance with the ordinance fixing a minimum
of 3 feet, mere compliance with the regulations does not satisfy
the requirement of due diligence nor avoid the need for
adopting such other precautionary measures as may be
warranted that negligence cannot be determined by a simple
matter of inches that all that the city did was to prescribe
certain minimum conditions and that just because the
ordinance required that primary electric wires should be not
less than 3 feet from any house, the obligation of due diligence
is not fulfilled by placing such wires at a distance of 3 feet and
one inch, regardless of other factors.
ISSUE WHETHER OR NOT MANILA ELECTRIC COMPANY
IS LIABLE FOR THE DEATH OF MAGNO
RULING : NO. SC RULED IN FAVOR OF THE COMPANY
The death of Magno was primarily caused by his own
negligence and in some measure by the too close proximity of
the “media agua” or rather its edge to the electric wire of the
company by reason of the violation of the original permit given
by the city and the subsequent approval of said illegal
construction of the “media agua”.
We fail to see how the Company could be held guilty of
negligence or as lacking in due diligence. Although the city
ordinance called for a distance of 3 feet of its wires from any
building, there was actually a distance of 7 feet and 2 3/4
inches of the wires from the side of the house of Peñaloza.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
Even considering said regulation distance of 3 feet as referring
not to the side of a building, but to any projecting part thereof,
such as a “media agua”, had the house owner followed the
terms of the permit given him by the city for the construction of
his “media agua”, namely, one meter or 39 3/8 inches wide, the
distance from the wires to the edge of said “media agua” would
have been 3 feet and 11 3/8 inches. In fixing said one meter
width for the “media agua” the city authorities must have
wanted to preserve the distance of at least 3 feet between the
wires and any portion of a building.
Unfortunately, however, the house owner disregarding the
permit, exceeded the one meter fixed by the same by 17 3/8
inches and leaving only a distance of 2 1/2 feet between the
“Media agua” as illegally constructed and the electric wires.
And added to this violation of the permit by the house owner,
was its approval by the city through its agent, possibly an
inspector. Surely we cannot lay these serious violations of a
city ordinance and permit at the door of the Company, guiltless
of breach of any ordinance or regulation.
The Company cannot be expected to be always on the lookout
for any illegal construction which reduces the distance between
its wires and said construction, and after finding that said
distance of 3 feet had been reduced, to change the stringing or
installation of its wires so as to preserve said distance. It would
be much easier for the City, or rather it is its duty, to be ever on
the alert and to see to it that its ordinances are strictly followed
by house owners and to condemn or disapprove all illegal
constructions.
Of course, in the present case, the violation of the permit for
the construction of the “media agua” was not the direct cause
of the accident. It merely contributed to it. Had said “media
agua” been only one meter wide as allowed by the permit,
Magno standing on it, would instinctively have stayed closer to
or hugged the side of the house in order to keep a safe margin
between the edge of the “media agua” and the yawning 2-story
distance or height from the ground, and possibly if not probably
avoided the fatal contact between the lower end of the iron
sheet and the wires.
Consequently, we may not hold said company as guilty of
negligence or wanting in due diligence in failing to insulate said
wires. As to their proximity to the house it is to be supposed
that distance of 3 feet was considered sufficiently safe by the
technical men of the city such as its electrician or engineer. Of
course, a greater distance of say 6 feet or 12 feet would have
increased the margin of safety but other factors had to be
considered such as that the wires could not be strung or the
posts supporting them could not be located too far toward the
middle of the street. Thus, the real cause of the accident or
death was the reckless or negligent act of Magno himself.
When he was called by his stepbrother to repair the “media
agua” just below the third story window, it is to be presumed
that due to his age and experience he was qualified to do so.
Perhaps he was a tinsmith or carpenter and had training and
experience for the job. So, he could not have been entirely a
stranger to electric wires and the danger lurking in them. But
unfortunately, in the instant care, his training and experience
failed him, and forgetting where he was standing, holding the
6-feet iron sheet with both hands and at arms length, evidently
without looking, and throwing all prudence and discretion to the
winds, he turned around swinging his arms with the motion of
his body, thereby causing his own electrocution.
In support of its theory and holding that Defendant-Appellant
was liable for damages the Court of Appeals cites the case of
Astudillo vs. Manila Electric Co., 55 Phil., 427. We do not think
the case is exactly applicable. There, the premises involved
was that elevated portion or top of the walls of Intramuros,
Manila, just above the Sta. Lucia Gate. In the words of the
Court, it was “a public place where persons come to stroll, to
rest and to enjoy themselves”. The electric company was
clearly negligent in placing its wires so near the place that
without much difficulty or exertion, a person by stretching his
hand out could touch them. A boy named Astudillo, placing one
foot on a projection, reached out and actually grasped the
electric wire and was electrocuted. The person electrocuted in
said case was a boy who was in no position to realize the
danger.
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In the present case, however, the wires were well high over the
street where there was no possible danger to pedestrians. The
only possible danger was to persons standing on the “media
agua”, but a “media agua” can hardly be considered a public
place where persons usually gather. Moreover, a person
standing on the “media agua” could not have reached the wires
with his hands alone. It was necessary as was done by Magno
to hold something long enough to reach the wire. Furthermore,
Magno was not a boy or a person immature but the father of a
family, supposedly a tinsmith trained and experienced in the
repair of galvanized iron roofs and “media agua”.
Moreover, in that very case of Astudillo vs. Manila Electric Co.,
supra, the court said that although it is a well- established
rule that the liability of electric companies for damages or
personal injuries is governed by the rules of negligence,
nevertheless such companies are not insurers of the
safety of the public.
But even assuming for a moment that under the facts of the
present case the Defendant electric company could be
considered negligent in installing its electric wires so close to
the house and “media agua” in question, and in failing to
properly insulate those wires (although according to the
unrefuted claim of said company it was impossible to make the
insulation of that kind of wire), nevertheless to hold the
Defendant liable in damages for the death of Magno, such
supposed negligence of the company must have been the
proximate and principal cause of the accident, because if the
act of Magno in turning around and swinging the galvanized
iron sheet with his hands was the proximate and principal
cause of the electrocution, then his heirs may not recover.
It is clear that the principal and proximate cause of the
electrocution was not the electric wire, evidently a remote
cause, but rather the reckless and negligent act of Magno
in turning around and swinging the galvanized iron sheet
without taking any precaution, such as looking back
toward the street and at the wire to avoid its contacting
said iron sheet, considering the latter’s length of 6 feet.
For a better understanding of the rule on remote and
proximate cause with respect to injuries, we find the
following citation helpful:
“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. pp. 931-
332.).
We realize that the stringing of wires of such high voltage
(3,600 volts), uninsulated and so close to houses is a constant
source of danger, even death, especially to persons who
having occasion to be near said wires, do not adopt the
necessary precautions. But may be, the City of Manila
authorities and the electric company could get together and
devise means of minimizing this danger to the public. Since
these high voltage wires cannot be properly insulated and at
reasonable cost, they might perhaps be strung only up to the
outskirts of the city where there are few houses and few
pedestrians and there step-down to a voltage where the wires
carrying the same to the city could be properly insulated for the
better protection of the public.
PROOF OF NEGLIGENCE
23. PHILIPPINE LONG DISTANCE TELEPHONE CO., INC.
vs. COURT OF APPEALS and SPOUSES ESTEBAN
FACTS: Private respondent spouses filed an action for
damages against petitioner Philippine Long Distance
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
Telephone Company (PLDT, for brevity) for the injuries they
sustained when their jeep ran over a mound of earth and fell
into an open trench, an excavation allegedly undertaken by
PLDT for the installation of its underground conduit system.
The complaint alleged that respondent Antonio Esteban failed
to notice the open trench which was left uncovered because of
the creeping darkness and the lack of any warning light or
signs.
PLDT, in its answer, that the entity which should be held
responsible is L.R. Barte and Company (Barte, for short), an
independent contractor which undertook the construction of the
manhole and the conduit system. Accordingly, PLDT filed a
third-party complaint against Barte alleging that, under the
terms of their agreement, PLDT should in no manner be
answerable for any accident or injuries arising from the
negligence or carelessness of Barte or any of its
employees. In answer thereto, Barte claimed that it was not
aware nor was it notified of the accident involving respondent
spouses and that it had complied with the terms of its contract
with PLDT by installing the necessary and appropriate
standard signs in the vicinity of the work site, with barricades at
both ends of the excavation and with red lights at night along
the excavated area to warn the traveling public of the presence
of excavations.
ISSUE: Whether or not the accident which befell private
respondents was due to the lack of diligence of petitioner
PLDT.
RULING: NO. The accident was not imputable to the
negligence on the part of PLDT.
First. Respondents’ jeep was running along the inside lane of
Lacson Street. If it had remained on that inside lane, it would
not have hit the ACCIDENT MOUND. Exhibit B shows, through
the tiremarks, that the ACCIDENT MOUND was hit by the jeep
swerving from the left that is, swerving from the inside lane.
What caused the swerving is not disclosed; but, as the cause
of the accident, defendant cannot be made liable for the
damages suffered by respondents. The accident was not due
to the absence of warning signs, but to the unexplained abrupt
swerving of the jeep from the inside lane.
Second. That respondents’ jeep was on the inside lane before
it swerved to hit the ACCIDENT MOUND could have been
corroborated by a picture showing Lacson Street to the south
of the ACCIDENT MOUND. Exhibit B-1 shows that the ditches
on Lacson Street north of the ACCIDENT MOUND had already
been covered, but not in such a way as to allow the outer lane
to be freely and conveniently passable to vehicles. The
situation could have been worse to the south of the ACCIDENT
MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Respondents’ jeep was not running at 25 kilometers an
hour as the husband claimed. At that speed, he could have
braked the vehicle the moment it struck the ACCIDENT
MOUND. The jeep would not have climbed the ACCIDENT
MOUND several feet as indicated by the tiremarks in Exhibit B.
The jeep must have been running quite fast. If the jeep had
been braked at 25 kilometers an hour, respondents would not
have been thrown against the windshield and they would not
have suffered their injuries.
Fourth. If the accident did not happen because the jeep was
running quite fast on the inside lane and for some reason or
other it had to swerve suddenly to the right and had to climb
over the ACCIDENT MOUND, then plaintiff-husband had not
exercised the diligence of a good father of a family to avoid the
accident. With the drizzle, he should not have run on dim
lights, but should have put on his regular lights which should
have made him see the ACCIDENT MOUND in time. If he was
running on the outside lane at 25 kilometers an hour, even on
dim lights, his failure to see the ACCIDENT MOUND in time to
brake the car was negligence on his part. The ACCIDENT
MOUND was relatively big and visible, being 2 to 3 feet high
and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND
in time, he would not have seen any warning sign either. He
knew of the existence and location of the ACCIDENT MOUND,
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having seen it many previous times. With ordinary precaution,
he should have driven his jeep on the night of the accident so
as to avoid hitting the ACCIDENT MOUND. 29
The above findings clearly show that the negligence of
respondent Antonio Esteban was not only contributory to his
injuries and those of his wife but goes to the very cause of the
occurrence of the accident, as one of its determining factors,
and thereby precludes their right to recover damages. The
perils of the road were known to, hence appreciated and
assumed by, private respondents. By exercising reasonable
care and prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged negligence
on the part of petitioner.
The presence of warning signs could not have completely
prevented the accident; the only purpose of said signs was to
inform and warn the public of the presence of excavations on
the site. The private respondents already knew of the presence
of said excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to fall into
the excavation but the unexplained sudden swerving of the
jeep from the inside lane towards the accident mound. As
opined in some quarters, the omission to perform a duty, such
as the placing of warning signs on the site of the excavation,
constitutes the proximate cause only when the doing of the
said omitted act would have prevented the injury. 31 It is basic
that private respondents cannot charge PLDT for their injuries
where their own failure to exercise due and reasonable care
was the cause thereof. It is both a societal norm and necessity
that one should exercise a reasonable degree of caution for his
own protection. Furthermore, respondent Antonio Esteban had
the last clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to petitioner PLDT.
As a resident of Lacson Street, he passed on that street almost
everyday and had knowledge of the presence and location of
the excavations there. It was his negligence that exposed him
and his wife to danger, hence he is solely responsible for the
consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of
Appeals in its original decision that there was insufficient
evidence to prove any negligence on the part of PLDT. We
have for consideration only the self-serving testimony of
respondent Antonio Esteban and the unverified photograph of
merely a portion of the scene of the accident. The absence of a
police report of the incident and the non-submission of a
medical report from the hospital where private respondents
were allegedly treated have not even been satisfactorily
explained. A person claiming damages for the negligence of
another has the burden of proving the existence of such fault
or negligence causative thereof. The facts constitutive of
negligence must be affirmatively established by competent
evidence. 33 Whosoever relies on negligence for his cause of
action has the burden in the first instance of proving the
existence of the same if contested, otherwise his action must
fail.
RES IPSA LOQUITOR
24. AFRICA VS. CALTEX
FACTS: In the afternoon of March 18, 1948, a fire broke out at
the Caltex service station at the corner of Antipolostreet 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 (Mateo Boquiren) as its
agent in charge of operation. Negligence on the part of both of
them was attributed as the cause of the fire.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
The CFI and CA found that the petitioners failed to prove
negligence of the respondents, and that there was due care in
the premises and with respect to the supervision of their
employees.
Issue: 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 the respondents.
Held: Yes.
Res ipsa loquitur literally means “the thing or transaction
speaks for itself.” For the doctrine of res ipsa loquitur to apply,
the following requisites should be present:
(a) the accident is of a kind which ordinarily does not occur in
the absence of someone’s negligence;
(b) it is caused by an instrumentality within the exclusive
control of the defendant or defendants; and
(c) the possibility of contributing conduct which would make the
plaintiff responsible is eliminated.
In the case at bar, the gasoline station, with all its appliances,
equipment and employees, was under the control of
respondents. 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 respondents 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. The negligence of the employees was
the proximate cause of the fire, which in the ordinary course of
things does not happen. Therefore, the petitioners are entitled
to the award for damages.
RES IPSA LOQUITOR
25. F.F. CRUZ and CO. vs. CA
FACTS: The furniture manufacturing shop of petitioner in
Caloocan City was situated adjacent to the residence of private
respondents. Sometime in August 1971, private respondent
Gregorio Mable first approached Eric Cruz, petitioner's plant
manager, to request that a firewall be constructed between the
shop and private respondents' residence. The request was
repeated several times but they fell on deaf ears. In the early
morning of September 6, 1974, fire broke out in petitioner's
shop. Petitioner's employees, who slept in the shop premises,
tried to put out the fire, but their efforts proved futile. The fire
spread to private respondents' house. Both the shop and the
house were razed to the ground. The cause of the
conflagration was never discovered.
On January 23, 1975, private respondents filed an action for
damages against petitioner.
ISSUE: W/N is petitioner is liable for the loss of property of the
respondent by reason of fire. YES!
HELD: Where the thing which caused the injury complained of
is shown to be under the management of the defendant or his
servants and the accident is such as in the ordinary course of
things does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident
arose from want of care.
The facts of the case call for the application of the doctrine of
res ipsa loquitor, considering that in the normal course of
operations of a furniture manufacturing shop, combustible
material such as wood chips, sawdust, paint, varnish and fuel
and lubricants for machinery may be found thereon.
It must also be noted that negligence or want of care on the
part of petitioner or its employees was not merely presumed.
The Court of Appeals found that petitioner failed to construct a
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firewall between its shop and the residence of private
respondents as required by a city ordinance; that the fire could
have been caused by a heated motor or a lit cigarette; that
gasoline and alcohol were used and stored in the shop; and
that workers sometimes smoked inside the shop.
Even without applying the doctrine of res ipsa loquitur,
petitioner's failure to construct a firewall in accordance
with city ordinances would suffice to support a finding of
negligence.
In the instant case, with more reason should petitioner be
found guilty of negligence since it had failed to construct a
firewall between its property and private respondents'
residence which sufficiently complies with the pertinent city
ordinances. The failure to comply with an ordinance providing
for safety regulations had been ruled by the Court as an act of
negligence.
26. D.M. CONSUNJI VS CA
FACTS: At around 1:30 p.m., November 2, 1990, Jose Juego,
a construction worker of D. M. Consunji, Inc., fell 14 floors from
the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva investigated the tragedy and filed a
report. Investigation disclosed that, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo were
performing their work as carpenters at the elevator core of the
14th floor of the Tower D, Renaissance Tower Building, on
board a platform made of channel beam (steel) measuring 4.8
meters by 2 meters wide with pinulid plywood flooring and
cable wires attached to its four corners and hooked at the 5 ton
chain block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the platform, got loose
causing the whole platform assembly and the victim to fall
down to the basement of the elevator core of the building
thereby crushing the victim of death, saving his two (2)
companions who luckily jumped out for safety. The falling of
the platform was due to the removal or getting loose of the pin
which was merely inserted to the connecting points of the
chain block and platform but without a safety lock.
Jose Juego’s widow, Maria, filed with the RTC a complaint for
damages against the deceased’s employer, D.M. Consunji,
Inc. The employer raised, among other defenses, the widow’s
prior availment of the benefits from the State Insurance Fund.
RTC rendered a decision in favor of the widow Maria Juego.
Court of Appeals (CA) affirmed the decision of the RTC
Petitioner takes particular exception to is PO3 Villanueva’s
testimony that the cause of the fall of the platform was the
loosening of the bolt from the chain block. It is claimed that
such portion of the testimony is mere opinion.
RULING
Petitioner’s contention, however, loses relevance in the face of
the application of res ipsa loquitur. The effect of the doctrine is
to warrant a presumption or inference that the mere fall of the
elevator was a result of the person having charge of the
instrumentality was negligent. As a rule of evidence, the
doctrine of res ipsa loquitur is peculiar to the law of negligence
which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for
specific proof of negligence.
The concept of res ipsa loquitur has been explained in this
wise:
While negligence is not ordinarily inferred or
presumed, and while the mere happening of an
accident or injury will not generally give rise to an
inference or presumption that it was due to
negligence on defendant’s part, under the doctrine of
res ipsa loquitur, which means, literally, the thing or
transaction speaks for itself, or in one jurisdiction,
that the thing or instrumentality speaks for itself,
the facts or circumstances accompanying an injury
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
may be such as to raise a presumption, or at least
permit an inference of negligence on the part of the
defendant, or some other person who is charged with
negligence.
x x x where it is shown that the thing or instrumentality
which caused the injury complained of was under the
control or management of the defendant, and that the
occurrence resulting in the injury was such as in the
ordinary course of things would not happen if those
who had its control or management used proper care,
there is sufficient evidence, or, as sometimes stated,
reasonable evidence, in the absence of explanation
by the defendant, that the injury arose from or was
caused by the defendant’s want of care.
The res ipsa loquitur doctrine is based in part upon
the theory that the defendant in charge of the
instrumentality which causes the injury either knows
the cause of the accident or has the best opportunity
of ascertaining it and that the plaintiff has no such
knowledge, and therefore is compelled to allege
negligence in general terms and to rely upon the proof
of the happening of the accident in order to establish
negligence. The inference which the doctrine permits
is grounded upon the fact that the chief evidence of
the true cause, whether culpable or innocent, is
practically accessible to the defendant but
inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur
furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant
who knows or should know the cause, for any
explanation of care exercised by the defendant in
respect of the matter of which the plaintiff complains.
The res ipsa loquitur doctrine, another court has said,
is a rule of necessity, in that it proceeds on the theory
that under the peculiar circumstances in which the
doctrine is applicable, it is within the power of the
defendant to show that there was no negligence on
his part, and direct proof of defendant’s negligence is
beyond plaintiff’s power. Accordingly, some court add
to the three prerequisites for the application of the res
ipsa loquitur doctrine the further requirement that for
the res ipsa loquitur doctrine to apply, it must appear
that the injured party had no knowledge or means of
knowledge as to the cause of the accident, or that the
party to be charged with negligence has superior
knowledge or opportunity for explanation of the
accident.23
The CA held that all the requisites of res ipsa loquitur are
present in the case at bar:
There is no dispute that appellee’s husband fell down
from the 14th floor of a building to the basement while
he was working with appellant’s construction project,
resulting to his death. The construction site is within
the exclusive control and management of appellant. It
has a safety engineer, a project superintendent, a
carpenter leadman and others who are in complete
control of the situation therein. The circumstances of
any accident that would occur therein are peculiarly
within the knowledge of the appellant or its
employees. On the other hand, the appellee is not in
a position to know what caused the accident. Res
ipsa loquitur is a rule of necessity and it applies
where evidence is absent or not readily available,
provided the following requisites are present: (1)
the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2)
the instrumentality or agency which caused the
injury was under the exclusive control of the
person charged with negligence; and (3) the injury
suffered must not have been due to any voluntary
action or contribution on the part of the person
injured. x x x.
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No worker is going to fall from the 14th floor of a
building to the basement while performing work in a
construction site unless someone is negligent[;] thus,
the first requisite for the application of the rule of res
ipsa loquitur is present. As explained earlier, the
construction site with all its paraphernalia and human
resources that likely caused the injury is under the
exclusive control and management of appellant[;]
thus[,] the second requisite is also present. No
contributory negligence was attributed to the
appellee’s deceased husband[;] thus[,] the last
requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present,
thus a reasonable presumption or inference of
appellant’s negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for
the application of res ipsa loquitur, but argues that the
presumption or inference that it was negligent did not arise
since it "proved that it exercised due care to avoid the accident
which befell respondent’s husband."
Petitioner apparently misapprehends the procedural
effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred when
the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff
makes out a prima facie case of all the elements, the
burden then shifts to defendant to explain . The
presumption or inference may be rebutted or
overcome by other evidence and, under appropriate
circumstances disputable presumption, such as that
of due care or innocence, may outweigh the
inference. It is not for the defendant to explain or
prove its defense to prevent the presumption or
inference from arising. Evidence by the defendant of
say, due care, comes into play only after the
circumstances for the application of the doctrine has
been established.
PRESUMPTION OF NEGLIGENCE: RES IPSA LOQUITOR
27. G.R. No. 157906 November 2, 2006
JOAQUINITA P. CAPILI vs. SPS. CARDAÑA
FACTS: On February 1, 1993, Jasmin Cardaña was walking
along the perimeter fence of the San Roque Elementary
School when a branch of a caimito tree located within the
school premises fell on her, causing her instantaneous death.
Thus, her parents - Dominador and Rosalita Cardaña - filed a
case for damages against petitioner. The Cardañas alleged in
their complaint that even as early as December 15, 1992, a
resident of the barangay, Eufronio Lerios, reported on the
possible danger the tree posed to passersby. Lerios even
pointed to the petitioner the tree that stood near the principal’s
office. The Cardañas averred that petitioner’s gross negligence
and lack of foresight caused the death of their daughter.
Respondents insist that petitioner knew that the tree was dead
and rotting, yet, she did not exercise reasonable care and
caution which an ordinary prudent person would have done in
the same situation.
Petitioner denied the accusation and said that at that time
Lerios had only offered to buy the tree. She also denied
knowing that the tree was dead and rotting. To prove her point,
she presented witnesses who attested that she had brought up
the offer of Lerios to the other teachers during a meeting on
December 15, 1992 and assigned Remedios Palaña to
negotiate the sale. Petitioner asserts that she was not
negligent about the disposal of the tree since she had assigned
her next-in-rank, Palaña, to see to its disposal; that despite her
physical inspection of the school grounds, she did not observe
any indication that the tree was already rotten nor did any of
her 15 teachers inform her that the tree was already
rotten;7 and that moral damages should not be granted against
her since there was no fraud nor bad faith on her part.
ISSUE: Whether petitioner is negligent and liable for the death
of Jasmin Cardaña.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
RULING: YES. The fact that respondents’ daughter, Jasmin,
died as a result of the dead and rotting tree within the school’s
premises shows that the tree was indeed an obvious danger to
anyone passing by and calls for application of the principle
of res ipsa loquitur.
The doctrine of res ipsa loquitur applies where (1) the accident
was of such character as to warrant an inference that it would
not have happened except for the defendant’s negligence; (2)
the accident must have been caused by an agency or
instrumentality within the exclusive management or control of
the person charged with the negligence complained of; and (3)
the accident must not have been due to any voluntary action or
contribution on the part of the person injured.14
The effect of the doctrine of res ipsa loquitur is to warrant a
presumption or inference that the mere falling of the branch of
the dead and rotting tree which caused the death of
respondents’ daughter was a result of petitioner’s negligence,
being in charge of the school.
In the case of D.M. Consunji, Inc. v. Court of Appeals,15 this
Court held:
…As a rule of evidence, the doctrine of res ipsa loquitur is
peculiar to the law of negligence which recognizes thatprima
facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in this
wise:
While negligence is not ordinarily inferred or presumed, and
while the mere happening of an accident or injury will not
generally give rise to an inference or presumption that it was
due to negligence on defendant’s part, under the doctrine
of res ipsa loquitur, which means, literally, the thing or
transaction speaks for itself, or in one jurisdiction, that the thing
or instrumentality speaks for itself, the facts or circumstances
accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on
the part of the defendant, or some other person who is charged
with negligence.
x x x where it is shown that the thing or instrumentality which
caused the injury complained of was under the control or
management of the defendant, and that the occurrence
resulting in the injury was such as in the ordinary course of
things would not happen if those who had its control or
management used proper care, there is sufficient evidence, or,
as sometimes stated, reasonable evidence, in the absence of
explanation by the defendant, that the injury arose from or was
caused by the defendant’s want of care.
The procedural effect of the doctrine of res ipsa loquitur is that
petitioner’s negligence is presumed once respondents
established the requisites for the doctrine to apply. Once
respondents made out a prima facie case of all requisites, the
burden shifts to petitioner to explain. The presumption or
inference may be rebutted or overcome by other evidence and,
under appropriate circumstances a disputable presumption,
such as that of due care or innocence, may outweigh the
inference.
Was petitioner’s explanation as to why she failed to have the
tree removed immediately sufficient to exculpate her?
As the school principal, petitioner was tasked to see to the
maintenance of the school grounds and safety of the children
within the school and its premises. That she was unaware of
the rotten state of the tree calls for an explanation on her part
as to why she failed to be vigilant.
Petitioner contends she was unaware of the state of the dead
and rotting tree. She argues that she could not see the
immediate danger posed by the tree by its mere sighting even
as she and the other teachers conducted ground inspections.
She further argues that, even if she should have been aware of
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the danger, she exercised her duty by assigning the disposition
of the tree to another teacher.
We find petitioner’s explanation wanting. As school principal,
petitioner is expected to oversee the safety of the school’s
premises. The fact that she failed to see the immediate danger
posed by the dead and rotting tree shows she failed to
exercise the responsibility demanded by her position.
Moreover, even if petitioner had assigned disposal of the tree
to another teacher, she exercises supervision over her
assignee. The record shows that more than a month had
lapsed from the time petitioner gave instruction to her assistant
Palaña on December 15, 1992, to the time the incident
occurred on February 1, 1993. Clearly, she failed to check
seasonably if the danger posed by the rotting tree had been
removed. Thus, we cannot accept her defense of lack of
negligence.
28. CASTILEX VS. VASQUEZ
FACTS: On 28 August 1988, at around 1:30 to 2:00 in
the morning, Romeo So Vasquez, was driving a Honda
motorcycle around FuenteOsmea Rotunda.
He was traveling counter-clockwise, (the normal flow of
traffic in a rotunda) but without any protective helmet or
goggles. He was also only carrying a Students Permit to
Drive at the time.
Upon the other hand, Benjamin Abad [was a] manager
of Appellant Castilex Industrial Corporation, registered
owner [of] a Toyota Hi-Lux Pick-up. On the same date
and time, Abad drove the said company car out of a
parking lot but instead of going around the Osmeña
rotunda, he made a short cut against [the] flow of the
traffic in proceeding to his route to General Maxilom St.
or to Belvic St.
In the process, the motorcycle of Vasquez and the pick-
up of Abad collided with each other causing severe
injuries to the former. Abad stopped his vehicle and
brought Vasquez to the Southern Islands Hospital and
later to the Cebu Doctors Hospital.
On September 5, 1988, Vasquez died at the Cebu
Doctors Hospital. It was there that Abad signed an
acknowledgment of Responsible Party wherein he
agreed to pay whatever hospital bills, professional fees
and other incidental charges Vasquez may incur.
After the police authorities had conducted the
investigation of the accident, a Criminal Case was filed
against Abad but which was subsequently dismissed for
failure to prosecute. The present action for damages
was commenced by the parents of the deceased Romeo
So Vasquez, against Jose Benjamin Abad and Castilex
Industrial Corporation. In the same action, Cebu Doctors
Hospital intervened to collect unpaid balance for the
medical expense given to Romeo So Vasquez.
ISSUE: Whether an employer may be held vicariously
liable for the death resulting from the negligent operation
by a managerial employee of a company-issued vehicle.
HELD: No.The mere fact that ABAD was using a service
vehicle at the time of the injurious incident is not of itself
sufficient to charge petitioner with liability for the
negligent operation of said vehicle unless it appears that
he was operating the vehicle within the course or scope
of his employment.
Use of Employers Vehicle Outside Regular Working Hours
An employer who loans his motor vehicle to an
employee for the latters personal use outside of regular
working hours is generally not liable for the employees
negligent operation of the vehicle during the period of
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
permissive use, even where the employer contemplates
that a regularly assigned motor vehicle will be used by
the employee for personal as well as business purposes
and there is some incidental benefit to the
employer. Even where the employees personal purpose
in using the vehicle has been accomplished and he has
started the return trip to his house where the vehicle is
normally kept, it has been held that he has not resumed
his employment, and the employer is not liable for the
employees negligent operation of the vehicle during the
return trip.
The foregoing principles and jurisprudence are
applicable in our jurisdiction albeit based on the doctrine
of respondeat superior, not on the principle
of bonus pater familias as in ours.
Whether the fault or negligence of the employee is
conclusive on his employer as in American law or
jurisprudence, or merely gives rise to the
presumption juristantum of negligence on the part of the
employer as in ours, it is indispensable that the
employee was acting in his employers business or within
the scope of his assigned task.
In the case at bar, it is undisputed that ABAD did
some overtime work at the petitioners office, which was
located in Cabangcalan, Mandaue City. Thereafter, he
went to Goldies Restaurant in FuenteOsmea, Cebu City,
which is about seven kilometers away from petitioners
place of business. A witness for the private respondents,
a sidewalk vendor, testified that FuenteOsmea is a lively
place even at dawn because Goldies Restaurant and
Back Street were still open and people were drinking
thereat. Moreover, prostitutes, pimps, and drug addicts
littered the place.
At the Goldies Restaurant, ABAD took some
snacks and had a chat with friends. It was when ABAD
was leaving the restaurant that the incident in question
occurred. That same witness for the private respondents
testified that at the time of the vehicular accident, ABAD
was with a woman in his car, who then shouted: Daddy,
Daddy. This woman could not have been ABADs
daughter, for ABAD was only 29 years old at the time.
To the mind of this Court, ABAD was engaged in
affairs of his own or was carrying out a personal purpose
not in line with his duties at the time he figured in a
vehicular accident. It was then about 2:00 a.m. of 28
August 1988, way beyond the normal working
hours. ABADs working day had ended; his overtime
work had already been completed. His being at a place
which, as petitioner put it, was known as a haven for
prostitutes, pimps, and drug pushers and addicts, had no
connection to petitioners business; neither had it any
relation to his duties as a manager. Rather, using his
service vehicle even for personal purposes was a form
of a fringe benefit or one of the perks attached to his
position.
Since there is paucity of evidence that ABAD was
acting within the scope of the functions entrusted to him,
petitioner CASTILEX had no duty to show that it
exercised the diligence of a good father of a family in
providing ABAD with a service vehicle. Thus, justice and
equity require that petitioner be relieved of vicarious
liability for the consequences of the negligence of ABAD
in driving its vehicle.
establish the employer-employee relationship; once this
is done, the plaintiff must show, to hold the employer
liable, that the employee was acting within the scope of
his assigned task when the tort complained of was
committed. It is only then that the employer may find it
necessary to interpose the defense of due diligence in
the selection and supervision of the employee.
VIOLATION OF TRAFFIC RULES
29. US VS. MARIANO CRAME
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FACTS: In 1914, between 11 and 12 o'clock, the accused,
Mariano Crame, a duly-licensed chauffeur, was driving an
automobile with Thomas M. Bill and Indalecio Rabonsa, an
apprentice to the accused who, at the time of the accident, was
sitting at his side on the front seat. The automobile was
passing from Santa Ana to Manila and, at the time of the
accident, was going in a northwesterly direction. At the same
time there were two automobile on the way from Manila to
Santa Ana, one belonging to Mr. Stuart, driven by himself, and
the other a machine without passengers driven by a chauffeur
by the name of Miranda. The automobile driven by Stuart was
a modern Cadillac with high-powered electric lights. The
accused states that this fact added to the other fact that he
was near the Damas Bridge at the time, induced him to reduce
the speed of the automobile at that point so that he was, at the
time of the accident, going only about 10 miles an hour. He
asserts that he suddenly saw the form of a man in front of his
automobile and that, on seeing him, he altered the course of
the machine as much as possible in order to avoid a collision;
but that he was unable to do so, the right side of the machine
hitting the man and knocking him to the ground. He asserted
that at the time it struck the man, the machine was almost at a
standstill, it coming to a complete stop within about 6 feet of
where the injured man lay.
Crame, Rabonsa, and Bill placed the injured man, Coombs (a
soldier), in the automobile and carried him to the hospital.
Afterwards they went to the police station at Paco and gave an
account of the accident.
Unfortunately, Coombs received a heavy blow in the lower part
of the back of the head which caused ecchymosis and
coagulation of blood. He is described by the physician who
examined and treated him as an incurable and hopeless
imbecile.
ISSUE: W/N, the accused is liable for the injuries suffered by
Coombs. YES
HELD: The fact that the accused did not see the soldier until
the machine was very close to him is strong evidence of
inattention to duty. The street at the place where the accident
occurred is wide and unobstructed. There is no building on
either side of the street. There is no place from which a person
desiring to cross the street can dart out so suddenly and
unexpectedly as to give a chauffeur no opportunity to protect
him. The street at the point where the accident occurred was
well lighted by electric light placed on both sides of the street.
Under such circumstance there is no reason why the accused
did not see that soldier long before he had reached the position
in the street where he was struck down.
Also, the accused intimates in his testimony that a carromata
was approaching him just before the accident occurred and
that it obscured his vision to such an extent that he did not see
that soldier until the very moment of meeting the carromata.
This story is not corroborated by any other witness in the case.
No one else speaks of the presence there of a carromata and
no one offers this as a person why the soldier was not seen in
time to avoid the accident. Moreover, if the soldier were
crossing the street the carromata would have obscured him for
a moment only and there would have been abundant time to
observe him before he reached the carromata and after he had
passed it. Besides, it is the duty of automobile drivers in
meeting a moving vehicle on the public streets and highways
to use due care and diligence to see to it that person who may
be crossing behind the moving vehicle are not run down by
their automobiles. There is nothing in this story of the accused
which, if true, relieves from the charge of negligence under the
other facts and circumstances disclosed by the evidence. It is
to be noted, also that counsel for the accused lays no stress on
this portion of his story and does not make it the basis of an
argument in his behalf.
Moreover, it appears clearly established by the evidence that
the accused was driving on the right-hand side of the street
when the accident happened. According to the law of the road
and the custom of the country he should have been on the left-
hand side of the street. According to the evidence there was
abundant room for him to drive upon what may properly be
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
called the left-hand side of the street and still be free from
danger or risk. Instead of that he chose to take what appears
from the evidence to have been almost the extreme right-hand
side of the street.
There is no evidence in the case which shows negligence on
the part of the injured soldier. The mere fact that he was run
down by an automobile does not signify that he was negligent.
At the time he was struck he was, speaking from the direction
in which the accused was driving the automobile at the time,
on the right-hand side of the street where he had a right to be
and where the law fully protested him from vehicles traveling in
the direction in which tested him from vehicles traveling in the
direction in which the accused was driving at the time of the
injury. The rule which requires travelers to look out for trains at
railroad crossings by stopping, looking and listening before
they pass over the tracks does not fix the measure of care
which a pedestrian attempting to cross a street must use in
looking out for automobiles.
We regard it as clear from the record that the accused was
driving much faster than he claims he was or else he was
negligent in not watching the street for foot passengers, or in
the handing of hid automobile. It is a matter of common
knowledge that an automobile being driven at 10 miles an hour
can be stopped if, necessity requires it, within 10 or 15 feet at
the most. That rate of speed is extremely low for an automobile
and , with such a sped, it can be stopped almost instantly. If,
therefore, the accused was going at the rate of 10 miles an
hour only and saw the soldiers 20 feet ahead of him, he could,
without difficulty, have stopped the automobile and avoided the
accident. As a necessary consequence, the accused was
either driving at a rate of speed much higher than that stated or
else he was negligent in not stopping his car. Furthermore, if
he did not see that soldier until too late to stop, the burden is
on him to show why he did not. There is no competent
evidence to show that the soldier was drunk at the time of the
accident; but, even if he was drunk, it is of little consequence in
the decision of this case, it not having been shown that such
drunkenness contributed to the accident. Whatever his
condition he could easily have been seen by the automobile
driver if he had been vigilant, as he should have been, in
passing over the streets of a city and especially in passing a
place where many used by people on foot. It is not shown that
the soldier's drunkenness, if he was in that state, any degree
contributed to the accident or that the accident would have
been avoided if he had been sober.
30. BATANGAS LAGUNA TAYABAS BUS COMPANY
(BLTB) & ARMANDO PON, vs. IAC
FACTS: The collision between Bus No. 1046 of BLTB driven
by Armando Pon and Bus No. 404 of Superlines driven by
Ruben Dasco took place at the highway traversing Barangay
Isabong, Tayabas, Quezon in the afternoon of August 11,
1978. The collision resulted in the death of Aniceto Rosales,
Francisco Pamfilo and Romeo Neri and in several injuries to
Nena Rosales (wife of Anecito) and Baylon Sales, all
passengers of the BLTB Bus No. 1046.
As BLTB Bus No. 1046 was negotiating the bend of the
highway, it tried to overtake a Ford Fiera car just as Bus No.
404 of Superlines was coming from the opposite direction.
Seeing thus, Armando Pon (driver of the BLTB Bus) made a
belated attempt to slacken the speed of his bus and tried to
return to his proper lane. It was an unsuccessful try as the two
(2) buses collided with each other.
as BLTB Bus No. 1046 was negotiating the bend of the
highway, it tried to overtake a Ford Fiera car just as Bus No.
404 of Superlines was coming from the opposite direction.
Seeing thus, Armando Pon (driver of the BLTB Bus) made a
belated attempt to slacken the speed of his bus and tried to
return to his proper lane. It was an unsuccessful try as the two
(2) buses collided with each other.
Defendants BLTB and Superlines, together with their drivers
Pon and Dasco, denied liability by claiming that they exercised
due care and diligence and shifted the fault, against each other
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Nena Vda. de Rosales and Baylon Sales and the surviving
heirs of the deceased Francisco Pamfilo, Aniceto Rosales and
Romeo Neri instituted separate cases against BLTB and
Superlines together with their respective drivers. Criminal
cases against the drivers of the two buses were filed as well.
Defendants BLTB and Superlines, together with their drivers
Pon and Dasco, denied liability by claiming that they exercised
due care and diligence and shifted the fault, against each
other.
The lower court exonerated defendants Superlines and its
driver Dasco from liability and attributed sole responsibility to
defendants BLTB and its driver Pon.
ISSUE: Whether or not BLTB and Pon are liable
RULING: YES
The court anchored petitioners' liability both on culpa
contractual and culpa aquiliana, to wit:
The proximate cause of the collision resulting in the
death of three and injuries to two of the passengers of
BLTB was the negligence of the driver of the BLTB
bus, who recklessly operated and drove said bus by
overtaking a Ford Fiera car as he was negotiating the
ascending bend of the highway which was divided
into two lanes by a continuous yellow strip. The driver
of the BLTB bus admitted in his cross-examination
that the continuous yellow line on the ascending bend
of the highway signifies a no-overtaking zone. It is no
surprise then that the driver of the Superlines bus was
exonerated by the lower court. He had a valid reason
to presuppose that no one would overtake in such a
dangerous situation. These facts show that patient
imprudence of the BLTB driver.
It is well settled that a driver abandoning his proper
lane for the purpose of overtaking another vehicle in
ordinary situation has the duty to see that the road is
clear and not to proceed if he can not do so in safety.
... Before attempting to pass the vehicle ahead, the
rear driver must see that the road is clear and if there
is no sufficient room for a safe passage, or the driver
ahead does not turn out so as to afford opportunity to
pass, or if, after attempting to pass, the driver of the
overtaking vehicle finds that he cannot make the
passage in safety, the latter must slacken his speed
so as to avoid the danger of a collision, even bringing
his car to a stop if necessary.
The above rule becomes more particularly applicable
in this case when the overtaking took place on an
ascending curved highway divided into two lanes by a
continuous yellow line. Appellant Pon should have
remembered that:
When a motor vehicle is approaching or rounding a
curve there is special necessity for keeping to the
right side of the road and the driver has not the right
to drive on the left hand side relying upon having time
to turn to the right if a car is approaching from the
opposite direction comes into view.
Unless there is proof to the contrary, it is presumed
that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating
any traffic regulation.
In failing to observe these simple precautions, BLTB's
driver undoubtedly failed to act with the diligence
demanded by the circumstances.
Conclusively therefore in consideration of the foregoing
findings of the respondent appellate court it is settled that the
proximate cause of the collision resulting in the death of three
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
and injuries to two of the passengers of BLTB was the sole
negligence of the driver of the BLTB Bus, who recklessly
operated and drove said bus in a lane where overtaking is not
allowed by Traffic Rules and Regulations.
VIOLATION OF TRAFFIC RULES
31. G.R. No. 162987 May 21, 2009
SOFIA M. GUILLANG vs. RODOLFO BEDANIA and
RODOLFO DE SILVA
FACTS: On 25 October 1994, at about 5:45 in the afternoon,
petitioner Genaro was driving his brand new Toyota Corolla
GLI sedan along Emilio Aguinaldo Highway (highway) in
Cavite. Petitioners had all just left from Golden City,
Dasmarinas, Cavite, and were on their way to Manila. At the
other side of the highway, respondent Bedania was driving a
ten-wheeler Isuzu cargo truck towards Tagaytay City. The
truck was owned by respondent de Silva.
Along the highway and the road leading to the Orchard Golf
Course, Bedania negotiated a U-turn. When the truck entered
the opposite lane of the highway, Genaros car hit the right
portion of the truck. The truck dragged Genaros car some five
meters to the right of the road.
As a consequence, all the passengers of the car were rushed
to the De La Salle University Medical Center in Dasmarias,
Cavite for treatment. Because of severe injuries, Antero was
later transferred to the Philippine General Hospital. However,
on 3 November 1994, Antero died due to the injuries he
sustained from the collision. The car was a total wreck while
the truck sustained minor damage. Petitioners instituted a
complaint for damages based on quasi-delict against
respondents Bedania and de Silva.
The trial court held Bedania and de Silva, as Bedanias
employer, liable because the proximate cause of the collision
was the sudden U-turn executed by Bedania without any signal
lights. According to the trial court, there is a presumption that a
person driving a motor vehicle has been negligent if at the time
of the mishap, he was violating any traffic regulation. In this
case, the trial court found that the Traffic Accident Investigation
Report (report), corroborated by the testimonies of the
witnesses, showed that the truck committed a traffic violation
by executing a U-turn without signal lights. The trial court also
declared that Bedania violated Sections 45(b), 48, and 54of
Republic Act No. 4136 when he executed the sudden U-
turn. The trial court added that Bedania violated another traffic
rule when he abandoned the victims after the collision. The trial
court concluded that Bedania was grossly negligent in his
driving and held him liable for damages.
On the other hand, the Court of Appeals reversed the trial
court’s decision and held Genaro liable because the proximate
cause of the collision was Genaros failure to stop the car
despite seeing that Bedania was making a U-turn. The Court of
Appeals relied on the testimony of Police Traffic Investigator
Videna that the car was running at a fast speed and overtook
another vehicle just before the collision occurred.
ISSUE: Whether or not Bedania and de Silva and their
respective employers are liable for the damages suffered by
petitioners.
RULING: YES.
Article 2176 of the Civil Code provides that whoever by act or
omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relations
between the parties, is called a quasi-delict. To sustain a claim
based on quasi-delict, the following requisites must concur: (a)
damage suffered by the plaintiff; (b) fault or negligence of
defendant; and (c) connection of cause and effect between the
fault or negligence of defendant and the damage incurred by
the plaintiff.[24]
There is no dispute that petitioners suffered damages because
of the collision. However, the issues on negligence and
proximate cause are disputed.
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On the Presumption of Negligence and Proximate Cause
Negligence is defined as the failure to observe for the
protection of the interest of another person that degree of care,
precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury. In Picart v.
Smith, we held that the test of negligence is whether the
defendant in doing the alleged negligent act used that
reasonable care and caution which an ordinary person would
have used in the same situation.
The conclusion of the Court of Appeals that Genaro was
negligent is not supported by the evidence on record. In ruling
that Genaro was negligent, the Court of Appeals gave weight
and credence to Police Traffic Investigator Videna’s
testimony. However, we find that Videna’s testimony was
inconsistent with the police records and report that he made on
the day of the collision. First, Videna testified that the car was
running fast and overtook another vehicle that already gave
way to the truck. But this was not indicated in either the report
or the police records. Moreover, if the car was speeding, there
should have been skid marks on the road when Genaro
stepped on the brakes to avoid the collision. But the sketch of
the accident showed no skid marks made by the car. Second,
Videna testified that the petitioners came from a drinking spree
because he was able to smell liquor. But in the report, Videna
indicated that the condition of Genaro was normal. Videna did
not indicate in the report that Genaro had been drinking liquor
or that Genaro was obviously drunk. Third, Videna testified that
when he arrived at the scene, Bedania was inside his truck.
This contradicts the police records where Videna stated that
after the collision Bedania escaped and abandoned the
victims. The police records also showed that Bedania was
arrested by the police at his barracks in Anabu, Imus, Cavite
and was turned over to the police only on 26 October 1994.
Under Article 2185 of the Civil Code, unless there is proof to
the contrary, a person driving a vehicle is presumed negligent
if at the time of the mishap, he was violating any traffic
regulation.
In this case, the report showed that the truck, while making the
U-turn, failed to signal, a violation of traffic rules. The police
records also stated that, after the collision, Bedania escaped
and abandoned the petitioners and his truck. This is another
violation of a traffic regulation. Therefore, the presumption
arises that Bedania was negligent at the time of the mishap.
The evidence presented in this case also does not support the
conclusion of the Court of Appeals that the truck had already
executed the U-turn before the impact occurred. If the truck
had fully made the U-turn, it should have been hit on its rear. If
the truck had already negotiated even half of the turn and is
almost on the other side of the highway, then the truck should
have been hit in the middle portion of the trailer or cargo
compartment. But the evidence clearly shows, and the Court of
Appeals even declared, that the car hit the trucks gas tank,
located at the trucks right middle portion, which disproves the
conclusion of the Court of Appeals that the truck had already
executed the U-turn when it was hit by the car.
Moreover, the Court of Appeals said that the point of impact
was on the lane where the car was cruising. Therefore, the car
had every right to be on that road and the car had the right of
way over the truck that was making a U-turn. Clearly, the truck
encroached upon the cars lane when it suddenly made the U-
turn.
The Court of Appeals also concluded that Bedania made the
U-turn at an intersection. Again, this is not supported by the
evidence on record. The police sketch does not indicate an
intersection and only shows that there was a road leading to
the Orchard Golf Course near the place of the
collision. Furthermore, U-turns are generally not advisable
particularly on major streets. Contrary to Videnas testimony, it
is not normal for a truck to make a U-turn on a highway. We
agree with the trial court that if Bedania wanted to change
direction, he should seek an intersection where it is safer to
maneuver the truck. Bedania should have also turned on his
signal lights and made sure that the highway was clear of
vehicles from the opposite direction before executing the U-
turn.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
The finding of the Court of Appeals that it was not yet dark
when the collision occurred is also not supported by the
evidence on record. The report stated that the daylight
condition at the time of the collision was darkness.
Contrary to the conclusion of the Court of Appeals, the sheer
size of the truck does not make it improbable for the truck to
execute a sudden U-turn. The trial courts decision did not state
that the truck was traveling at a fast speed when it made the U-
turn. The trial court said the truck made a sudden U-turn,
meaning the U-turn was made unexpectedly and with no
warning, as shown by the fact that the trucks signal lights were
not turned on.
Clearly, Bedanias negligence was the proximate cause of the
collision which claimed the life of Antero and injured the
petitioners. Proximate cause is that which, in the natural and
continuous sequence, unbroken by any efficient, intervening
cause, produces the injury, and without which the result would
not have occurred. The cause of the collision is traceable to
the negligent act of Bedania for if the U-turn was executed with
the proper precaution, the mishap in all probability would not
have happened. The sudden U-turn of the truck without signal
lights posed a serious risk to oncoming motorists. Bedania
failed to prevent or minimize that risk. The trucks sudden U-
turn triggered a series of events that led to the collision and,
ultimately, to the death of Antero and the injuries of petitioners.
We agree with the trial court that de Silva, as Bedanias
employer, is also liable for the damages suffered by
petitioners. De Silva failed to prove that he exercised all the
diligence of a good father of a family in the selection and
supervision of his employees.
32. BERNARDO VS. LEGASPI
NEGLIGENCE; AUTOMOBILES; COLLISION TROUGH
MUTUAL NEGLIGENCE. — Where two automobiles, going in
opposite directions, collide on turning a street corner, and it
appears from the evidence and is found by the trial court that
the drivers thereof were equally negligent and contributed
equally to the principal occurrence as determining causes
thereof, neither can recover of the other for the damages
suffered.
FACTS: This is an action to recover damages for injuries
sustained by Juan Bernardo’s automobile by reason of
Legaspi’s negligence in causing a collision between his
automobile and that of Bernardo.
The cross-complaint filed by Legaspi praying for damages
against the plaintiff was dismissed on the ground that the
injuries sustained by 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.
ISSUE: Whether drivers who are equally negligent and both
contributed to the occurrence may recover damages.
HELD: No.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.
CONTRIBUTORY NEGLIGENCE
33. RAKES v ATLANTIC GULF AND PACIFIC COMPANY
FACTS: 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
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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.
ISSUE: Whether there is contributory negligence on the part of
the plaintiff. YES!
RULING: Yes. 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.
The Court ruled that 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. 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.
Distinction must be between the accident and the injury,
between the event itself, without which there could have been
no accident, and those acts of the victim not entering into it,
independent of it, but contributing under review was the
displacement of the crosspiece or the failure to replace it. This
produced the event giving occasion for damages — that is, the
sinking of the track and the sliding of the iron rails.
Thus, while Atlantic was negligent in failing to repair the bed of
the track, Rakes was guilty of contributory negligence in
walking at the side instead of being in front or behind. The
amount of damages should be reduced.
34. TAYLOR VS MANILA ELECTRIC AND RAILROAD
COMPANY (MERALCO)
FACTS: MERALCO 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.
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
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
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.
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. The boys then
made a series of experiments with the caps. 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. essie, 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.
ON CONTRIBUTORY NEGLIGENCE
RULING:
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.
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.)
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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."
DEFENSES AGAINST CHARGE OF NEGLIGENCE:
CONTRIBUTORY NEGLIGENCE
35. MEDARDO AG. CADIENTE vs. BITHUEL MACAS
FACTS: Eyewitness Palero testified that on July 19, 1994, at
about 4:00 p.m., at the intersection of Buhangin and San
Vicente Streets in Davao City, 15-year old high school student
respondent Macas, was standing on the shoulder of the
road. She was about two and a half meters away from the
respondent when he was bumped and run over by a Ford
Fiera, driven by Cimafranca. Rosalinda and another
unidentified person immediately came to the respondent’s
rescue and told Cimafranca to take the victim to the
hospital. Cimafranca rushed the respondent to
the Davao Medical Center.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
Dr. Hilario Diaz, the orthopedic surgeon who attended to the
respondent, had to amputate both legs up to the groins in order
to save his life. Cimafranca had since absconded and
disappeared. Records showed that the Ford Fiera was
registered in the name of herein petitioner, Atty. Medardo Ag.
Cadiente. However, Cadiente claimed that when the accident
happened, he was no longer the owner of the Ford Fiera. He
alleged that he sold the vehicle to Engr. Rogelio Jalipa and
turned over the Certificate of Registration and Official Receipt
to Jalipa, with the understanding that the latter would be the
one to cause the transfer of the registration.
The victim’s father, Samuel Macas, filed a complaint for torts
and damages against Cimafranca and Cadiente.
ISSUES:
1. Whether there was contributory negligence on the part
of the victim, respondent Macas.
NO. The underlying precept on contributory negligence is that
a plaintiff who is partly responsible for his own injury should not
be entitled to recover damages in full, but must proportionately
bear the consequences of his own negligence. The defendant
is thus held liable only for the damages actually caused by his
negligence.
In this case, records show that when the accident happened,
the victim was standing on the shoulder, which was the
uncemented portion of the highway. As noted by the trial court,
the shoulder was intended for pedestrian use alone. Only
stationary vehicles, such as those loading or unloading
passengers may use the shoulder. Running vehicles are not
supposed to pass through the said uncemented portion of the
highway. However, the Ford Fiera in this case, without so
much as slowing down, took off from the cemented part of the
highway, inexplicably swerved to the shoulder, and recklessly
bumped and ran over an innocent victim. The victim was just
where he should be when the unfortunate event transpired.
Cimafranca, on the other hand, had no rightful business driving
as recklessly as she did. The respondent cannot be expected
to have foreseen that the Ford Fiera, erstwhile speeding along
the cemented part of the highway would suddenly swerve to
the shoulder, then bump and run him over. Thus, we are
unable to accept the petitioner’s contention that the respondent
was negligent.
2. Who is liable?
Cadiente is the one liable to respondent. This Court has
recently reiterated in PCI Leasing and Finance, Inc. v. UCPB
General Insurance Co., Inc., that the registered owner of any
vehicle, even if he had already sold it to someone else, is
primarily responsible to the public for whatever damage or
injury the vehicle may cause. We explained,
Were a registered owner allowed to evade responsibility by
proving who the supposed transferee or owner is, it would be
easy for him, by collusion with others or otherwise, to escape
said responsibility and transfer the same to an indefinite
person, or to one who possesses no property with which to
respond financially for the damage or injury done. A victim of
recklessness on the public highways is usually without means
to discover or identify the person actually causing the injury or
damage. He has no means other than by a recourse to the
registration in the Motor Vehicles Office to determine who is
the owner. The protection that the law aims to extend to him
would become illusory were the registered owner given the
opportunity to escape liability by disproving his ownership.
In the case of Villanueva v. Domingo, we said that the policy
behind vehicle registration is the easy identification of the
owner who can be held responsible in case of accident,
damage or injury caused by the vehicle. This is so as not to
inconvenience or prejudice a third party injured by one whose
identity cannot be secured. Therefore, since the Ford Fiera
was still registered in the petitioner’s name at the time when
the misfortune took place, the petitioner cannot escape liability
for the permanent injury it caused the respondent, who had
since stopped schooling and is now forced to face life with nary
but two remaining limbs.
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36. Lapanday vs. Angala
FACTS: On 4 May 1993, a Datsun crewcabdriven by
ApolonioDeocampo (Deocampo) bumped into a 1958 Chevy
pick-up owned by Michael Raymond Angala (respondent) and
driven by BernulfoBorres (Borres).
Lapanday Agricultural and Development Corporation
(LADECO) owned the crewcab which was assigned to its
manager Manuel Mendez (Mendez).
Deocampo was the driver and bodyguard of Mendez. Both
vehicles were running along Rafael Castillo St., Agdao, Davao
City heading north towards Lanang, Davao City. The left door,
front left fender, and part of the front bumper of the pick-up
were damaged.
Respondent filed an action for Quasi-Delict, Damages, and
Attorney’s Fees against LADECO, its administrative officer
Henry Berenguel(Berenguel) and Deocampoalleging that his
pick-up was slowing down to about five to ten kilometers per
hour (kph) and was making a left turn preparatory to turning
south when it was bumped from behind by the crewcab which
was running at around 60 to 70 kph.
The crewcab stopped 21 meters from the point of impact.
Respondent alleged that he heard a screeching sound before
the impact. Respondent was seated beside the driver and was
looking at the speedometer when the accident took place.
Respondent testified that Borres made a signal because he
noticed a blinking light while looking at the speedometer.
Deocampo alleged that the pick-up and the crewcab he was
driving were both running at about 40 kph. The pick-up was
running along the outer lane. The pick-up was about 10 meters
away when it made a U-turn towards the left. Deocampo
testified that he did not see any signal from the pick-up.
Deocampo alleged that he tried to avoid the pick-up but he was
unable to avoid the collision. Deocampo stated that he did not
apply the brakes because he knew the collision was
unavoidable. Deocampo admitted that he stepped on the
brakes only after the collision.
ISSUE: WON Deocampo is liable for damages.
HELD: Yes.
Doctrine of Last Clear Chance Applies
Since both parties are at fault in this case, the doctrine of last
clear chance applies.
The doctrine of last clear chance states that where both parties
are negligent but the negligent act of one is appreciably later
than that of the other, or where it is impossible to determine
whose fault or negligence caused the loss, the one who had
the last clear opportunity to avoid the loss but failed to do so is
chargeable with the loss. In this case, Deocampo had the last
clear chance to avoid the collision.
Since Deocampo was driving the rear vehicle, he had full
control of the situation since he was in a position to observe
the vehicle in front of him.Deocampo had the responsibility of
avoiding bumping the vehicle in front of him. A U-turn is done
at a much slower speed to avoid skidding and overturning,
compared to running straight ahead.Deocampo could have
avoided the vehicle if he was not driving very fast while
following the pick-up. Deocampo was not only driving fast, he
also admitted that he did not step on the brakes even upon
seeing the pick-up. He only stepped on the brakes after the
collision.
Petitioners are Solidarily Liable
LADECO alleges that it should not be held jointly and severally
liable with Deocampo because it exercised due diligence in the
supervision and selection of its employees. Aside from this
statement, LADECO did not proffer any proof to show how it
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
exercised due diligence in the supervision and selection of its
employees. LADECO did not show its policy in hiring its
drivers, or the manner in which it supervised its drivers.
LADECO failed to substantiate its allegation that it exercised
due diligence in the supervision and selection of its employees.
Hence, we hold LADECO solidarily liable with Deocampo.
ATTRACTIVE NUISSANCE
37. HIDALGO ENTERPRISES vs. GUILLERMO BALANDAN
FACTS: Petitioner Hidalgo Enterprises, Inc. "was the owner of
an ice-plant factory in the City of San Pablo, Laguna, in whose
premises were installed two tanks full of water, nine feet deep,
for cooling purposes of its engine. While the factory compound
was surrounded with fence, the tanks themselves were not
provided with any kind of fence or top covers. The edges of the
tanks were barely a foot high from the surface of the ground.
Through the wide gate entrance, which is continually open,
motor vehicles hauling ice and persons buying said commodity
passed, and anyone could easily enter the said factory, as he
pleased. There was no guard assigned on the gate. At about
noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy
barely 8 years old, while playing with and in company of other
boys of his age entered the factory premises through the gate,
to take a bath in one of said tanks; and while thus bathing,
Mario sank to the bottom of the tank, only to be fished out later,
already a cadaver, having been died of "asphyxia secondary to
drowning."
ISSUE: W/N swimming pool or water tank is an attractive
nuisance. NO.
HELD: The doctrine of attractive nuisance states that “One
who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and
who fails to exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the child is
technically a trespasser in the premises. American
Jurisprudence shows us that the attractive nuisance doctrine
generally is not applicable to bodies of water, artificial as well
as natural, in the absence of some unusual condition or
artificial feature other than the mere water and its location.
The reason why a swimming pool or pond or reservoir of water
is not considered an attractive nuisance was lucidly explained
by the Indiana Appellate Court as follows:
Nature has created streams, lakes and pools which attract
children. Lurking in their waters is always the danger of
drowning. Against this danger children are early instructed so
that they are sufficiently presumed to know the danger; and if
the owner of private property creates an artificial pool on his
own property, merely duplicating the work of nature without
adding any new danger . . . (he) is not liable because of having
created an "attractive nuisance."
Therefore, as petitioner's tanks are not classified as attractive
nuisance, the question whether the petitioner had taken
reasonable a precaution becomes immaterial. In the case bar,
the tanks themselves cannot fall under such doctrine thus the
petitioners cannot be held liable for Mario’s death.
38. AFIALDA VS HISOLE
FACTS: This is an action for damages arising from injury
caused by an animal. The complaint alleges that the now
deceased, Loreto Afialda, was employed by the defendant
spouses as caretaker of their carabaos at a fixed
compensation; that while tending the animals he was, on
March 21, 1947, gored by one of them and later died as a
consequence of his injuries; that the mishap was due neither to
his own fault nor to force majeure; and that plaintiff is his elder
sister and heir depending upon him for support.
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Plaintiff seeks to hold defendants liable under article 1905 of
the Civil Code, which reads:
The possessor of an animal, or the one who uses the
same, is liable for any damages it may cause, even if
such animal should escape from him or stray away.
This liability shall cease only in case, the damage
should arise from force majeure or from the fault of
the person who may have suffered it.
ISSUE: Whether the owner of the animal is liable when
damage is caused to its caretaker.
RULING:
The lower court took the view that under the Civil Code, the
owner of an animal is answerable only for damages caused to
a stranger, and that for damage caused to the caretaker of the
animal the owner would be liable only if he had been negligent
or at fault under article 1902 of the same code. Claiming that
the lower court was in error, counsel for plaintiff contends that
the article 1905 does not distinguish between damage caused
to the caretaker and makes the owner liable whether or not he
has been negligent or at fault.
This opinion, however, appears to have been rendered in a
case where an animal caused injury to a stranger or third
person. It is therefore no authority for a case like the present
where the person injured was the caretaker of the animal. The
distinction is important. For the statute names the possessor or
user of the animal as the person liable for "any damages it may
cause," and this for the obvious reason that the possessor or
user has the custody and control of the animal and is therefore
the one in a position to prevent it from causing damage.
In the present case, the animal was in custody and under the
control of the caretaker, who was paid for his work as such.
Obviously, it was the caretaker's business to try to prevent the
animal from causing injury or damage to anyone, including
himself. And being injured by the animal under those
circumstances, was one of the risks of the occupation which he
had voluntarily assumed and for which he must take the
consequences.
In a decision of the Spanish Supreme Court, cited by Manresa
in his Commentaries (Vol. 12, p. 578), the death of an
employee who was bitten by a feline which his master had
asked him to take to his establishment was by said tribunal
declared to be "a veritable accident of labor" which should
come under the labor laws rather than under article 1905 of the
Civil Code. The present action, however, is not brought under
the Workmen's Compensation Act, there being no allegation
that, among other things, defendant's business, whatever that
might be, had a gross income of P20,000. As already stated,
defendant's liability is made to rest on article 1905 of the Civil
Code. but action under that article is not tenable for the
reasons already stated. On the other hand, if action is to be
based on article 1902 of the Civil Code, it is essential that there
be fault or negligence on the part of the defendants as owners
of the animal that caused the damage. But the complaint
contains no allegation on those points.
LAST CLEAR CHANCE
39. G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG vs. METROPOLITAN
WATER DISTRICT
FACTS: Defendant owns and operates three recreational
swimming pools at its Balara filters, Diliman, Quezon City, to
which people are invited and for which a nominal fee of P0.50
for adults and P0.20 for children is charged. The main pool it
between two small pools of oval shape known as the "Wading
pool" and the "Beginners Pool." There are diving boards in the
big pools and the depths of the water at different parts are
indicated by appropriate marks on the wall. The care and
supervision of the pools and the users thereof is entrusted to a
recreational section composed of Simeon Chongco as chief,
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
Armando Rule, a male nurse, and six lifeguards who had taken
the life-saving course given by the Philippine Red Cross at the
YMCA in Manila. For the safety of its patrons, defendant has
provided the pools with a ring buoy, toy roof, towing line,
saving kit and a resuscitator. There is also a sanitary inspector
who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place
certain rules and regulations governing the use of the pools,
one of which prohibits the swimming in the pool alone or
without any attendant. Although defendant does not maintain a
full-time physician in the swimming pool compound, it has
however a nurse and a sanitary inspector ready to administer
injections or operate the oxygen resuscitator if the need should
arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student and boy
scout, and his brothers Ruben and Eusebio, went to
defendant's swimming pools. This was not the first time that
the three brothers had gone to said natatorium for they had
already been there four or five times before. They arrived at
the natatorium at about 1:45 p.m. After paying the requisite
admission fee, they immediately went to one of the small pools
where the water was shallow. At about 4:35 p.m., Dominador
Ong told his brothers that he was going to the locker room in
an adjoining building to drink a bottle of coke. Upon hearing
this, Ruben and Eusebio went to the bigger pool leaving
Dominador in the small pool and so they did not see the latter
when he left the pool to get a bottle of coke. In that afternoon,
there were two lifeguards on duty in the pool compound,
namely, Manuel Abaño and Mario Villanueva. The tour of duty
of Abaño was from 8:00 to 12:00 in the morning and from 2:00
to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30
a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that
afternoon, there were about twenty bathers inside the pool
area and Manuel Abaño was going around the pools to
observe the bathers in compliance with the instructions of his
chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool
area informed a bather by the name of Andres Hagad, Jr., that
somebody was swimming under water for quite a long time.
Another boy informed lifeguard Manuel Abaño of the same
happening and Abaño immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of
Dominador Ong from the bottom. The body was placed at the
edge of the pool and Abaño immediately applied manual
artificial respiration. Soon after, male nurse Armando Rule
came to render assistance, followed by sanitary inspector
Iluminado Vicente who, after being called by phone from the
clinic by one of the security guards, boarded a jeep carrying
with him the resuscitator and a medicine kit, and upon arriving
he injected the boy with camphorated oil. After the injection,
Vicente left on a jeep in order to fetch Dr. Ayuyao from the
University of the Philippines. Meanwhile, Abaño continued the
artificial manual respiration, and when this failed to revive him,
they applied the resuscitator until the two oxygen tanks were
exhausted. Not long thereafter, Dr. Ayuyao arrived with
another resuscitator, but the same became of no use because
he found the boy already dead. The doctor ordered that the
body be taken to the clinic.
ISSUE: Whether the death of minor Dominador Ong can be
attributed to the negligence of defendant and/or its employees.
RULING: NO. There is sufficient evidence to show that
appellee has taken all necessary precautions to avoid danger
to the lives of its patrons or prevent accident which may cause
their death. Thus, it has been shown that the swimming pools
of appellee are provided with a ring buoy, toy roof, towing line,
oxygen resuscitator and a first aid medicine kit. The bottom of
the pools is painted with black colors so as to insure clear
visibility. There is on display in a conspicuous place within the
area certain rules and regulations governing the use of the
pools. Appellee employs six lifeguards who are all trained as
they had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on schedule
prepared by their chief and arranged in such a way as to have
two guards at a time on duty to look after the safety of the
bathers. There is a male nurse and a sanitary inspector with a
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clinic provided with oxygen resuscitator. And there are security
guards who are available always in case of emergency.
The record also shows that when the body of minor Ong was
retrieved from the bottom of the pool, the employees of
appellee did everything possible to bring him back to life. Thus,
after he was placed at the edge of the pool, lifeguard Abaño
immediately gave him manual artificial respiration. Soon
thereafter, nurse Armando Rule arrived, followed by sanitary
inspector Iluminado Vicente who brought with him an oxygen
resuscitator. When they found that the pulse of the boy was
abnormal, the inspector immediately injected him with
camphorated oil. When the manual artificial respiration proved
ineffective they applied the oxygen resuscitator until its
contents were exhausted. And while all these efforts were
being made, they sent for Dr. Ayuyao who however came late
because upon examining the body he found him to be already
dead. All of the foregoing shows that appellee has done what
is humanly possible under the circumstances to restore life to
minor Ong and for that reason it is unfair to hold it liable for his
death.
Sensing that their former theory as regards the liability of
appellee may not be of much help, appellants now switch to
the theory that even if it be assumed that the deceased is
partly to be blamed for the unfortunate incident, still appellee
may be held liable under the doctrine of "last clear chance" for
the reason that, having the last opportunity to save the victim, it
failed to do so.
We do not see how this doctrine may apply considering that
the record does not show how minor Ong came into the big
swimming pool. The only thing the record discloses is that
minor Ong informed his elder brothers that he was going to the
locker room to drink a bottle of coke but that from that time on
nobody knew what happened to him until his lifeless body was
retrieved. The doctrine of last clear chance simply means that
the negligence of a claimant does not preclude a recovery for
the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person
who has the last clear chance or opportunity of avoiding an
accident, notwithstanding the negligent acts of his opponent or
the negligence of a third person which is imputed to his
opponent, is considered in law solely responsible for the
consequences of the accident."
Since it is not known how minor Ong came into the big
swimming pool and it being apparent that he went there
without any companion in violation of one of the regulations of
appellee as regards the use of the pools, and it appearing that
lifeguard Abano to responded to the call for help as soon as his
attention was called to it and immediately after retrieving the
body all efforts at the disposal of appellee had been put into
play in order to bring him back to life, it is clear that there is no
room for the application of the doctrine now invoked by
appellants to impute liability to appellee..
The last clear chance doctrine can never apply where the
party charged is required to act instantaneously, and if the
injury cannot be avoided by the application of all means at
hand after the peril is or should have been discovered; at
least in cases in which any previous negligence of the party
charged cannot be said to have contributed to the injury.
Before closing, we wish to quote the following observation of
the trial court, which we find supported by the evidence: "There
is (also) a strong suggestion coming from the expert evidence
presented by both parties that Dominador Ong might have
dived where the water was only 5.5 feet deep, and in so doing
he might have hit or bumped his forehead against the bottom
of the pool, as a consequence of which he was stunned, and
which to his drowning. As a boy scout he must have received
instructions in swimming. He knew, or have known that it was
dangerous for him to dive in that part of the pool."
40. Glan People’s Lumber vs. IAC
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
FACTS: Engineer Orlando T. Calibo, AgripinoRoranes, and
MaximoPatos were on the jeep owned by the Bacnotan
Consolidated Industries, Inc., with Calibo at the wheel, as it
approached from the South Lizada Bridge going towards the
direction of Davao City at about 1:45 in the afternoon of July
4,1979.
At about that time, the cargo track, loaded with cement bags,
GI sheets, plywood, driven by defendant Paul Zacarias y
Infants, coming from the opposite direction of Davao City and
bound for Glan, South Cotabato, had just crossed said bridge.
At about 59 yards after crossing the bridge, the cargo truck and
the jeep collided as a consequence of which Engineer Calibo
died while Roranes and Patos sustained physical injuries.
Zacarias was unhurt.
As a result of the impact, the left side of the truck was slightly
damaged while the left side of the jeep, including its fender and
hood, was extensively damaged. After the impact, the jeep fell
and rested on its right side on the asphalted road a few meters
to the rear of the truck, while the truck stopped on its wheels
on the road.
On November 27, 1979, the instant case for damages was filed
by the surviving spouse and children of the late Engineer
Calibo who are residents of Tagbilaran City against the driver
and owners of the cargo truck.
RTC dismissed the complaint for failure to establish
preponderance of evidence. CA reversed and found Zacarias
negligent. Hence, this present case.
ISSUE:
HELD: Both drivers, as the Appellate Court found, had had a
full view of each other's vehicle from a distance of one hundred
fifty meters. Both vehicles were travelling at a speed of
approximately thirty kilometers per hour.
The private respondents have admitted that the truck was
already at a full stop when the jeep plowed into it. And they
have not seen fit to deny or impugn petitioners' imputation that
they also admitted the truck had been brought to a stop while
the jeep was still thirty meters away.
From these facts the logical conclusion emerges that the driver
of the jeep had what judicial doctrine has appropriately called
the last clear chance to avoid the accident, while still at that
distance of thirty meters from the truck, by stopping in his turn
or swerving his jeep away from the truck, either of which he
had sufficient time to do while running at a speed of only thirty
kilometers per hour. In those circumstances, his duty was to
seize that opportunity of avoidance, not merely rely on a
supposed right to expect, as the Appellate Court would have it,
the truck to swerve and leave him a clear path.
The doctrine of the last clear chance provides as valid and
complete a defense to accident liability today as it did when
invoked and applied in the 1918 case of Picart vs. Smith,
supra, which involved a similar state of facts.
Since said ruling clearly applies to exonerate petitioner
Zacarias and his employer (and co-petitioner) George Lim, an
inquiry into whether or not the evidence supports the latter's
additional defense of due diligence in the selection and
supervision of said driver is no longer necessary and wig not
be undertaken. The fact is that there is such evidence in the
record which has not been controverted.
LAST CLEAR CHANCE DOCTRINE
41. PANTRANCO NORTH EXPRESS, INC vs. MARICAR
BASCOS BAESA
FACTS: Spouses Baesa, their 4 children, the Ico spouses and
their son and 7 other people boarded a passenger jeep driven
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by David Ico to go to a picnic in Isabela, to celebrate the 5th
wedding anniversary of the Baesa spouses.
While they were proceeding towards Malalam River at a speed
of about 20 kph, a speeding PANTRANCO bus from Aparri, on
a route to Manila, encroached on the jeepney’s lane while
negotiating a curve, and collided with it.
As a result, the entire Baesa family, except for their
daughter Maricar Baesa, as well as David Ico, died (sad ),
and the rest suffered from injuries. Maricar Baesa, through her
guardian filed separate actions for damages arising from quasi-
delict against PANTRANCO.
PANTRANCO on the other hand alleged David Ico's
negligence as a proximate cause of the accident and invoked
the defense of due diligence in the selection and supervision of
its driver.
ISSUE: W/N the last clear chance applies thereby making
David Ico who had the chance to avoid the collision negligent
in failing to utilize with reasonable care and competence.
HELD: NO.
Generally, the doctrine applies only in a situation where the
plaintiff was guilty of prior or antecedent negligence but the
defendant, who had the last fair chance to avoid the impending
harm and failed to do so, is made liable for all the
consequences of the accident notwithstanding the prior
negligence of the plaintiff. The subsequent negligence of the
defendant in failing to exercise ordinary care to avoid injury to
plaintiff becomes the immediate or proximate cause of the
accident which intervenes between the accident and the more
remote negligence of the plaintiff, thus making the defendant
liable to the plaintiff.
For the last clear chance doctrine to apply, it is necessary to
show that the person who allegedly has the last opportunity to
avert the accident was aware of the existence of the peril, or
should, with exercise of due care, have been aware of it. In this
case, there is nothing to show that the jeepney driver David Ico
knew of the impending danger.
When he saw at a distance that the approaching bus was
encroaching on his lane, he did not immediately swerve the
jeepney to the dirt shoulder on his right since he must have
assumed that the bus driver will return the bus to its own lane
upon seeing the jeepney approaching form the opposite
direction.
By the time David Ico must have realized that the bus was not
returning to its own lane, it was already too late to swerve the
jeepney to his right to prevent an accident. The speed at which
the approaching bus was running prevented David Ico from
swerving the jeepney to the right shoulder of the road in time to
avoid the collision. Even assuming that the jeepney driver
perceived the danger a few seconds before the actual collision,
he had no opportunity to avoid it.
Truly, the last clear chance doctrine can NEVER apply where
the party charged is required to act instantaneously, and if the
injury cannot be avoided by the application of all means at
hand after the peril is or should have been discovered.
PRESCRIPTION
42. FERRER VS ERICTA GR NO. L-41767
FACTS: Defendants Mr. and Mrs. Francis Pfleider were the
owners or operators of a Ford pick-up car. That at about 5:00
o'clock in the afternoon of December 31, 1970, in the streets of
Bayawan, Negros Oriental, their son, defendant Dennis
Pfleider, who was then only sixteen (16) years of age, without
proper official authority, drove the above-described vehicle,
without due regard to traffic rules and regulations, and without
taking the necessary precaution to prevent injury to persons or
damage to property, and as a consequence the pickup car was
overturned, causing physical injuries to plaintiff Annette Ferrer,
who was then a passenger therein, which injuries paralyzed
her and required medical treatment and confinement at
different hospitals for more than two (2) years; that as a result
of the physical injuries sustained by Annette, she suffered
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez |Page 29 of 36
by: Angit, Masiga, Respicio & Solis ®
unimaginable physical pain, mental anguish, and her parents
also suffered mental anguish, moral shock and spent a
considerable sum of money for her treatment. They prayed that
defendants be ordered to reimburse them for actual expenses
as well as other damages.
In due time, defendants filed their answer, putting up the
affirmative defense that defendant Dennis Pfleider exercised
due care and utmost diligence in driving the vehicle
aforementioned and alleging that Annette Ferrer and the other
persons aboard said vehicle were not passengers in the strict
sense of the term, but were merely joy riders and that,
consequently, defendants had no obligation whatsoever to
plaintiffs.
RTC rendered judgment against private respondents, finding
that the minor Dennis Pfleider, was allowed by his parents to
operate a Ford pick-up car and because of his reckless
negligence caused the accident in question, resulting in injuries
to Annette.
The spouses filed a Motion for Reconsideration on the ground
that the complaint shows on its face "that it was filed only on
January 6, 1975, or after the lapse of MORE THAN FOUR
YEARS from the date of the accident on December 31, 1970",
likewise appearing from the complaint and, therefore, the
action has already prescribed under Article 1146 of the Civil
Code.
ISSUE: whether the defense of prescription is proper/ whether
the defense of prescription had been deemed waived by
private respondents' failure to allege the same in their answer.
RULING: As early as Chua Lamko v. Dioso, et al., 5 this Court
sustained the dismissal of a counterclaim on the ground of
prescription, although such defense was not raised in the
answer of the plaintiff. Thus, this Court held that where the
answer does not take issue with the complaint as to dates
involved in the defendant's claim of prescription, his failure to
specifically plead prescription in the answer does not constitute
a waiver of the defense of prescription. It was explained that
the defense of prescription, even if not raised in a motion to
dismiss or in the answer, is not deemed waived unless such
defense raises issues of fact not appearing upon the preceding
pleading.
In Philippine National Bank v. Perez, et al., 6 which was an
action filed by the Philippine National Bank on March 22, 1961
for revival of a judgment rendered on December 29, 1949
against Amando Perez, Gregorio Pumuntoc and Virginia de
Pumuntoc pursuant to Section 6, Rule 39 of the rules of court
the defendants were declared in default for their failure to file
their answer. There upon, the plaintiff submitted its evidence,
but when the case was submitted for decision, the court a quo
dismissed the complaint on the ground that plaintiff's cause of
action had already prescribed under Articles 1144 and 1152 of
the Civil Code. The plaintiff in said case, contending that since
prescription is a defense that can only be set up by
defendants, the court could not motu proprio consider it as a
basis for dismissal, moved to reconsider the order, but its
motion was denied. When the issue was raised to this Court,
We ruled:
It is true that the defense of prescription can only be
considered if the same is invoked as such in the answer of
the defendant and that in this particular instance no such
defense was invoked because the defendants had been
declared in default, but such rule does riot obtain when the
evidence shows that the cause of action upon which
plaintiff's complaint is based is already barred by the
statute of limitations. (Emphasis supplied.)
Again, in Philippine National Bank v. Pacific Commission
House, 7 where the action sought to revive a judgment
rendered by the Court of First Instance of Manila on February
3, 1953 and it was patent from the stamp appearing on the first
page of the complaint that the complaint was actually filed on
May 31, 1963, this Court sustained the dismissal of the
complaint on the ground of prescription, although such defense
was not raised in the answer, overruling the appellants'
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invocation of Section 2 of Rule 9 of the Rules of Court that
"defenses and objections not pleaded either in a motion to
dismiss or in tile answer are deemed waived." We held therein
that "... the fact that the plaintiff's own allegation in tile
complaint or the evidence it presented shows clearly that the
action had prescribed removes this case from the rule
regarding waiver of the defense by failure to plead the same."
In the present case, there is no issue of fact involved in
connection with the question of prescription. The complaint in
Civil Case No. Q-19647 alleges that the accident which caused
the injuries sustained by plaintiff Annette Ferrer occured on
December 31, 1970. It is undisputed that the action for
damages was only filed on January 6, 1975. Actions for
damages arising from physical injuries because of a tort must
be filed within four years. The four-year period begins from the
day the quasi-delict is committed or the date of the accident.
PRESCRIPTION
43. ERNESTO KRAMER, JR. and MARIA KRAMER vs.
COURT OF APPEALS and TRANS-ASIA SHIPPING LINES,
INC.
FACTS: In the early morning of April 8, 1976, the F/B Marjolea,
a fishing boat owned by the petitioners, was navigating its way
from Marinduque to Manila. Somewhere near Maricabon Island
and Cape Santiago, the boat figured in a collision with an inter-
island vessel, the M/V Asia Philippines owned by the private
respondent Trans-Asia Shipping Lines, Inc. As a consequence
of the collision, the F/B Marjolea sank, taking with it its fish
catch.
After the mishap, the captains of both vessels filed their
respective marine protests with the Board of Marine Inquiry of
the Philippine Coast Guard. The Board conducted an
investigation for the purpose of determining the proximate
cause of the maritime collision. On October 19, 1981, the
Board concluded that the loss of the F/B Marjolea and its fish
catch was attributable to the negligence of the employees of
the private respondent who were on board the M/V Asia
Philippines during the collision.
On May 30, 1985, the petitioners instituted a Complaint for
damages against the private respondent . The private
respondent filed a Motion seeking the dismissal of the
Complaint on the ground of prescription. He argued that under
Article 1146 of the Civil Code, the prescriptive period for
instituting a Complaint for damages arising from a quasi-delict
like a maritime collision is four years. He maintained that the
petitioners should have filed their Complaint within four years
from the date when their cause of action accrued, i.e., from
April 8, 1976 when the maritime collision took place, and that
accordingly, the Complaint filed on May 30, 1985 was instituted
beyond the four-year prescriptive period.
The petitioners argued that the running of the prescriptive
period was tolled by the filing of the marine protest and that
their cause of action accrued only on April 29, 1982, the date
when the Decision ascertaining the negligence of the crew of
the M/V Asia Philippines had become final, and that the four-
year prescriptive period under Article 1146 of the Civil Code
should be computed from the said date. The petitioners
concluded that inasmuch as the Complaint was filed on May
30, 1985, the same was seasonably filed.
ISSUE: Whether or not a Complaint for damages instituted by
the petitioners against the private respondent arising from a
marine collision is barred by the statute of limitations.
RULING: Yes. Under Article 1146 of the Civil Code, an action
based upon a quasi-delict must be instituted within four (4)
years. The prescriptive period begins from the day the quasi-
delict is committed. In Paulan vs. Sarabia, this Court ruled that
in an action for damages arising from the collision of two (2)
trucks, the action being based on a quasi-delict, the four (4)
year prescriptive period must be counted from the day of the
collision.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
In Espanol vs. Chairman, Philippine Veterans Administration,
this Court held as follows-
The right of action accrues when there exists a cause of
action, which consists of 3 elements, namely: a) a right in
favor of the plaintiff by whatever means and under whatever
law it arises or is created; b) an obligation on the part of
defendant to respect such right; and c) an act or omission on
the part of such defendant violative of the right of the plaintiff
... It is only when the last element occurs or takes place that
it can be said in law that a cause of action has arisen ... .
From the foregoing ruling, it is clear that the prescriptive period
must be counted when the last element occurs or takes place,
that is, the time of the commission of an act or omission
violative of the right of the plaintiff, which is the time when the
cause of action arises.
It is therefore clear that in this action for damages arising from
the collision of two (2) vessels the four (4) year prescriptive
period must be counted from the day of the collision. The
aggrieved party need not wait for a determination by an
administrative body like a Board of Marine Inquiry, that the
collision was caused by the fault or negligence of the other
party before he can file an action for damages. The ruling in
Vasquez does not apply in this case. Immediately after the
collision the aggrieved party can seek relief from the courts by
alleging such negligence or fault of the owners, agents or
personnel of the other vessel.
Thus, the respondent court correctly found that the action of
petitioner has prescribed. The collision occurred on April 8,
1976. The complaint for damages was filed iii court only on
May 30, 1 985, was beyond the four (4) year prescriptive
period.
FORTUITOUS EVENT
44. TEODORO HERNANDEZ vs. COMMISSION ON AUDIT
FACTS: Teodoro M. Hernandez was the officer-in-charge and
special disbursing officer of the Ternate Beach Project of the
Philippine Tourism Authority in Cavite. As such, he went to the
main office of the Authority in Manila on July 1, 1983, to
encash two checks covering the wages of the employees and
the operating expenses of the Project. He estimated that the
money would be available by ten o'clock in the morning and
that he would be back in Ternate by about two o'clock in the
afternoon of the same day. For some reason, however, the
processing of the checks was delayed and was completed only
at three o'clock that afternoon. The petitioner decided
nevertheless to encash them because the Project employees
would be waiting for their pay the following day. He thought he
had to do this for their benefit as otherwise they would have to
wait until the following Tuesday at the earliest when the main
office would reopen. And so, on that afternoon of July 1, 1983,
he collected the cash value of the checks and left the main
office with not an insubstantial amount of money in his hands.
In the meantime, the petitioner had two choices, to wit: (1)
return to Ternate, Cavite, that same afternoon and arrive there
in the early evening; or (2) take the money with him to his
house in Marilao, Bulacan, spend the night there, and leave for
Ternate the following morning. He opted for the second,
thinking it the safer one. And so, on that afternoon of July 1,
1983, at a little past three o'clock, he took a passenger jeep
bound for his house in Bulacan.
It was while the vehicle was along EDSA that two persons
boarded with knives in hand and robbery in mind. One pointed
his weapon at the petitioner's side while the other slit his
pocket and forcibly took the money he was carrying. The two
then jumped out of the jeep and ran. Hernandez, after the
initial shock, immediately followed in desperate pursuit. He
caught up with Virgilio Alvarez and overcame him after a
scuffle. The petitioner sustained injuries in the lip arms and
knees. Alvarez was subsequently charged with robbery and
pleaded guilty. But the hold-upper who escaped is still at large
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and the stolen money he took with him has not been
recovered.
Petitioner filed a request for relief from money accountability
under Section 638 of the Revised Administrative Code.
Philippine Tourism Authority – favored him.
The Regional Director, National Capital Region, of the
Commission on Audit- favored; absolved Hernandez of
negligence.
On June 29, 1984, however, the COA denied the petitioner's
request, observing that the loss of the P10,175.00 under the
accountability of Mr. Hernandez can be attributed to his
negligence because had he brought the cash proceeds of the
checks (replenishment fund) to the Beach Park in Ternate,
Cavite, immediately after encashment for safekeeping in his
office, which is the normal procedure in the handling of public
funds, the loss of said cash thru robbery could have been
aborted.
Hernandez claims that the respondent Commission on Audit
acted with grave abuse of discretion in denying him relief and
in holding him negligent for the loss of the stolen money. He
avers he has done only what any reasonable man would have
done and should not be held accountable for a fortuitous event
over which he had no control.
The petitioner stresses that he decided to encash the checks in
the afternoon of July 1, 1983, which was a Friday, out of
concern for the employees of the Project, who were depending
on him to make it possible for them to collect their pay the
following day. July 2 and 3 being non-working days and July 4
being a holiday, they could receive such payment only on the
following Tuesday unless he brought the encashed checks on
July 1, 1983, and took it to Ternate the following day.
On his decision to take the money home that afternoon instead
of returning directly to Ternate, he says that the first course
was more prudent as he saw it, if only because his home in
Marilao, Bulacan, was much nearer than his office in Ternate,
Cavite. The drive to Ternate would take three hours, including
a 30-minute tricycle ride along the dark and lonely Naic-
Ternate road; and as he would be starting after three o'clock in
the afternoon, it was not likely that he would reach his
destination before nightfall. By contrast, the road to Marilao
was nearer and safer (or so he reasonably thought) and there
was less risk involved in his taking the money the following
morning to Ternate rather than on that same afternoon of July
1.
The petitioner maintains that the likelihood of robbery during
the time in question was stronger in Ternate than in Marilao, so
he should not be blamed if the robbery did occur while he was
on the way to Marilao that afternoon.
That was a fortuitous event that could not have reasonably
been foreseen, especially on that busy highway. At any
rate, he contends, he had not been remiss in protecting the
money in his custody; in fact, he immediately pursued the hold-
uppers and succeeded in catching one of them who was
subsequently prosecuted and convicted. It might have been
different if he had simply resigned himself to the robbery and
allowed the culprits to go scot-free. But he acted. His action
after the robbery only goes to show his vigilance over the
money entrusted to his custody and his readiness to protect it
even at great personal risk.
COA insists that the petitioner should not be relieved from his
money accountability because it was his own negligence that
led to the loss of the cash he had sought to take not to Ternate
in Cavite but to Marilao.
ISSUE: WON the robbery is a fortuitous event so as to absolve
Hernandez of negligence.
HELD: Yes.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
Hindsight is a cruel judge. It is so easy to say, after the event,
that one should have done this and not that or that he should
not have acted at all, or else this problem would not have
arisen at all. That is all very well as long as one is examining
something that has already taken place. One can hardly be
wrong in such a case. But the trouble with this retrospective
assessment is that it assumes for everybody an uncanny
prescience that will enable him by some mysterious process to
avoid the pitfalls and hazards that he is expected to have
foreseen. It does not work out that way in real life. For most of
us, all we can rely on is a reasoned conjecture of what might
happen, based on common sense and our own experiences, or
our intuition, if you will, and without any mystic ability to peer
into the future. So it was with the petitioner.
It is pointless to argue that Hernandez should have encashed
the vouchers earlier because they were dated anyway on June
29, 1983. He was not obliged to encash the checks earlier and
then again there might have been any number of reasons why
he did so only on July 1, 1983.
The point is that he did encash the checks on that date and
took the money to Marilao and not Ternate in view of the
lateness of the hour. The question before us is whether these
acts are so tainted with negligence or recklessness as to justify
the denial of the petitioner's request for relief from
accountability for the stolen money.
It seems to us that the petitioner was moved only by the best of
motives when he encashed the checks on July 1, 1983, so his
co-employees in Ternate could collect their salaries and wages
the following day. Significantly, although this was a non-
working day, he was intending to make the trip to his office the
following day for the unselfish purpose of accommodating his
fellow workers. The other alternative was to encash the check
is on July 5, 1983, the next working day after July 1, 1983,
which would have meant a 5-day wait for the payment of the
said salaries and wages. Being a modest employee himself,
Hernandoz must have realized the great discomfort it would
cause the laborer who were dependent on their wages for their
sustenance and were anxious to collect their pay as soon as
possible.
For such an attitude, Hernandez should be commended rather
than faulted.
As for Hernandez's choice between Marilao, Bulacan, and
Ternate, Cavite, one could easily agree that the former was the
safer destination, being nearer, and in view of the comparative
hazards in the trips to the two places. It is true that the
petitioner miscalculated, but the Court feels he should not be
blamed for that.
The decision he made seemed logical at that time and was one
that could be expected of a reasonable and prudent person.
And if, as it happened, the two robbers attacked him in broad
daylight in the jeep while it was on a busy highway, and in the
presence of other passengers, it cannot be said that all this
was the result of his imprudence and negligence. This was
undoubtedly a fortuitous event covered by the said provisions,
something that could not have been reasonably foreseen
although it could have happened, and did.
FORTUITOUS EVENT
45. GOTESCO INVESTMENT CORPORATION vs.GLORIA E.
CHATTO
FACTS: In the afternoon of June 4, 1982 plaintiff Gloria E.
Chatto, and her 15-year old daughter, plaintiff Lina Delza E.
Chatto went to see the movie 'Mother Dear' at Superama I
theater, owned by defendant Gotesco Investment Corporation.
They bought balcony tickets but even then were unable to find
seats considering the number of people patronizing the movie.
Hardly ten (10) minutes after entering the theater, the ceiling of
its balcony collapsed. The theater was plunged into darkness
and pandemonium ensued. Shocked and hurt, plaintiffs
managed to crawl under the fallen ceiling. As soon as they
were able to get out to the street they walked to the nearby
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FEU Hospital where they were confined and treated for one (1)
day.
The next day, they transferred to the UST hospital. Plaintiff
Gloria Chatto was treated in said hospital from June 5 to June
19 and plaintiff Lina Delza Chatto from June 5 to 11. Due to
continuing pain in the neck, headache and dizziness, plaintiff
went to Illinois, USA in July 1982 for further treatment (Exh.
"E") She was treated at the Cook County Hospital in Chicago,
Illinois. She stayed in the U.S. for about three (3) months
during which time she had to return to the Cook County
Hospital five (5) or six (6) times.
ISSUE: Whether Gotesco is liable.
RULING: Yes.
Petitioner's claim that the collapse of the ceiling of the theater's
balcony was due to force majeure is not even founded on facts
because its own witness, Mr. Jesus Lim Ong, admitted that "he
could not give any reason why the ceiling collapsed.
Clearly, there was no authoritative investigation conducted by
impartial civil and structural engineers on the cause of the
collapse of the theater's ceiling. Jesus Lim Ong is not an
engineer, he is a graduate of architecture from the St. Louie
(sic) University in Baguio City. It does not appear he has
passed the government examination for architects. In fine, the
ignorance of Mr. Ong about the cause of the collapse of the
ceiling of their theater cannot be equated as an act of God. To
sustain that proposition is to introduce sacrilege in our
jurisprudence.
Having interposed it as a defense, it had the burden to prove
that the collapse was indeed caused by force majeure. It could
not have collapsed without a cause. That Mr. Ong could not
offer any explanation does not imply force majeure.
Verily, the post-incident investigation cannot be considered as
material to the present proceedings. What is significant is the
finding of the trial court, affirmed by the respondent Court, that
the collapse was due to construction defects. There was no
evidence offered to overturn this finding. The building was
constructed barely four (4) years prior to the accident in
question. It was no shown that any of the causes denominated
as force majeure obtained immediately before or at the time of
the collapse of the ceiling. Such defects could have been
easily discovered if only petitioner exercised due diligence and
care in keeping and maintaining the premises. But as disclosed
by the testimony of Mr. Ong, there was no adequate inspection
of the premises before the date of the accident. His answers to
the leading questions on inspection disclosed neither the exact
dates of said inspection nor the nature and extent of the same.
That the structural designs and plans of the building were duly
approved by the City Engineer and the building permits and
certificate of occupancy were issued do not at all prove that
there were no defects in the construction, especially as regards
the ceiling, considering that no testimony was offered to prove
that it was ever inspected at all. It is settled that: "The owner or
proprietor of a place of public amusement impliedly warrants
that the premises, appliances and amusement devices are
safe for the purpose for which they are designed, the doctrine
being subject to no other exception or qualification than that he
does not contract against unknown defects not discoverable by
ordinary or reasonable means." This implied warranty has
given rise to the rule that: "Where a patron of a theater or other
place of public amusement is injured, and the thing that caused
the injury is wholly and exclusively under the control and
management of the defendant, and the accident is such as in
the ordinary course of events would not have happened if
proper care had been exercised, its occurrence raises a
presumption or permits of an inference of negligence on the
part of the defendant." That presumption or inference was not
overcome by the petitioner.
As gleaned from Bouvier's definition of and Cockburn's
elucidation on force majeure, for one to be exempt from any
liability because of it, he must have exercised care, i.e., he
should not have been guilty of negligence.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
MISTAKE AND WAIVER
46. GATCHALIAN VS CA
FACTS: At noon time on 11 July 1973, petitioner Reynalda
Gatchalian boarded, as a paying passenger, respondent's
"Thames" mini bus at a point in San Eugenio, Aringay, La
Union, bound for Bauang, of the same province. On the way,
while the bus was running along the highway in Barrio
Payocpoc, Bauang, Union, "a snapping sound" was suddenly
heard at one part of the bus and, shortly thereafter, the vehicle
bumped a cement flower pot on the side of the road, went off
the road, turned turtle and fell into a ditch. Several passengers,
including petitioner Gatchalian, were injured. They were
promptly taken to Bethany Hospital at San Fernando, La
Union, for medical treatment. Upon medical examination,
petitioner was found to have sustained physical injuries on the
leg, arm and forehead.
While the passengers were still confrined in the hospital, Mrs.
Adela Delim, wife of respondent, visited them and later paid for
their hospitalization and medical expenses. She also gave
petitioner P12.00 with which to pay her transportation expense
in going home from the hospital. However, before Mrs. Delim
left, she had the injured passengers, including petitioner, sign
an already prepared Joint Affidavit which stated, among other
things:
That we were passengers of Thames with Plate No. 52-222
PUJ Phil. 73 and victims after the said Thames met an
accident at Barrio Payocpoc Norte, Bauang, La Union while
passing through the National Highway No. 3;
That after a thorough investigation the said Thames met the
accident due to mechanical defect and went off the road and
turned turtle to the east canal of the road into a creek causing
physical injuries to us;
xxx xxx xxx
That we are no longer interested to file a complaint, criminal or
civil against the said driver and owner of the said Thames,
because it was an accident and the said driver and owner of
the said Thames have gone to the extent of helping us to be
treated upon our injuries.
Notwithstanding this document, petitioner Gathalian filed an
action against the bus company She alleged in the complaint
that her injuries sustained from the vehicular mishap had left
her with a conspicuous white scar measuring 1 by 1/2 inches
on the forehead, generating mental suffering and an inferiority
complex on her part; and that as a result, she had to retire in
seclusion and stay away from her friends. She also alleged
that the scar diminished her facial beauty and deprived her of
opportunities for employment.
In defense, respondent averred that the vehicular mishap was
due to force majeure, and that petitioner had already been paid
and moreover had waived any right to institute any action
against him (private respondent) and his driver, when petitioner
Gatchalian signed the Joint Affidavit.
ISSUE: Whether or not respondents contention is tenable
RULING:
No valid waiver of her cause of action had been made by
petitioner. The relevant language of the Joint Affidavit may be
quoted again:
That we are no longer interested to file a
complaint, criminal or civil against the said driver
and owner of the said Thames, because it was an
accident and the said driver and owner of the said
Thames have gone to the extent of helping us to
be treated upon our injuries. (Emphasis supplied)
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A waiver, to be valid and effective, must in the first
place be couched in clear and unequivocal terms
which leave no doubt as to the intention of a person to
give up a right or benefit which legally pertains to him.
4 A waiver may not casually be attributed to a person
when the terms thereof do not explicitly and clearly
evidence an intent to abandon a right vested in such
person.
The degree of explicitness which this Court has required in
purported waivers is illustrated in Yepes and Susaya v. Samar
Express Transit (supra), where the Court in reading and
rejecting a purported waiver said:
. . . It appears that before their transfer to the
Leyte Provincial Hospital, appellees were asked
to sign as, in fact, they signed the document
Exhibit I wherein they stated that "in
consideration of the expenses which said
operator has incurred in properly giving us the
proper medical treatment, we hereby manifest
our desire to waive any and all claims against the
operator of the Samar Express Transit."
xxx xxx xxx
Even a cursory examination of the document
mentioned above will readily show that appellees
did not actually waive their right to claim
damages from appellant for the latter's failure to
comply with their contract of carriage. All that
said document proves is that they expressed a
"desire" to make the waiver — which obviously is
not the same as making an actual waiver of their
right. A waiver of the kind invoked by appellant
must be clear and unequivocal (Decision of the
Supreme Court of Spain of July 8, 1887) — which
is not the case of the one relied upon in this
appeal. (Emphasis supplied)
If we apply the standard used in Yepes and Susaya,
we would have to conclude that the terms of the Joint
Affidavit in the instant case cannot be regarded as a
waiver cast in "clear and unequivocal" terms.
Moreover, the circumstances under which the Joint
Affidavit was signed by petitioner Gatchalian need to
be considered. Petitioner testified that she was still
reeling from the effects of the vehicular accident,
having been in the hospital for only three days, when
the purported waiver in the form of the Joint Affidavit
was presented to her for signing; that while reading
the same, she experienced dizziness but that, seeing
the other passengers who had also suffered injuries
sign the document, she too signed without bothering
to read the Joint Affidavit in its entirety. Considering
these circumstances there appears substantial doubt
whether petitioner understood fully the import of the
Joint Affidavit (prepared by or at the instance of
private respondent) she signed and whether she
actually intended thereby to waive any right of action
against private respondent.
Finally, because what is involved here is the liability of a
common carrier for injuries sustained by passengers in respect
of whose safety a common carrier must exercise extraordinary
diligence, we must construe any such purported waiver most
strictly against the common carrier. For a waiver to be valid
and effective, it must not be contrary to law, morals, public
policy or good
customs. To uphold a supposed waiver of any right to claim
damages by an injured passenger, under circumstances like
those exhibited in this case, would be to dilute and weaken the
standard of extraordinary diligence exacted by the law from
common carriers and hence to render that standard
unenforceable. We believe such a purported waiver is
offensive to public policy.
DAMNUM ABSQUE INJURIA
47. NAPOCOR and BENJAMIN CHAVEZ vs. CA
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
FACTS: It appears that in the early morning hours of October
27, 1978, at the height of typhoon "Kading", a massive flood
covered the towns near Angat Dam, particularly the town of
Norzagaray, causing several deaths and the loss and
destruction of houses, farms, plants, working animals and
other properties of the people residing near the Angat River.
Private respondents recalled that on the said day, they were
awakened by the sound of rampaging water all around them.
The water came swiftly and strongly that before they could do
anything to save their belongings, their houses had
submerged, some even swept away by the strong current. A
number of people were able to save their lives only by climbing
trees.
Private respondents blamed the sudden rush of water to the
reckless and imprudent opening of all the three (3) floodgates
of the Angat Dam spillway, without prior warning to the people
living near or within the vicinity of the dam.
Petitioners denied private respondents' allegations and, by way
of defense, contended that they have maintained the water in
the Angat Dam at a safe level and that the opening of the
spillways was done gradually and after all precautionary
measures had been taken. Petitioner NPC further contended
that it had always exercised the diligence of a good father in
the selection of its officials and employees and in their
supervision. It also claimed that written warnings were earlier
sent to the towns concerned. At the time typhoon "Kading" hit
Bulacan with its torrential rain, a great volume of flood water
flowed into the dam's reservoir necessitating the release of the
water therein in order to prevent the dam from collapsing and
causing the loss of lives and tremendous damage to livestock
and properties.
Petitioners further contended that there was no direct causal
relationship between the alleged damages suffered by the
respondents and the acts and omissions attributed to the
former. That it was the respondents who assumed the risk of
residing near the Angat River, and even assuming that
respondents suffered damages, the cause was due to a
fortuitous event and such damages are of the nature and
character of damnum absque injuria, hence, respondents have
no cause of action against them.
ISSUE: Whether or not the damage suffered by private
respondents was damnum absque injuria .
RULING: NO.
Petitioners, are liable under the law on quasi-delict even if
there was no contractual relation between themselves and
private respondents. Article 2176 of the Civil Code explicitly
provides "whoever by act or omission causes damage to
another there being fault or negligence is obliged to pay for the
damage done."
Neither can petitioners escape liability by invoking force
majeure. The principle embodied in the act of God doctrine
strictly requires that the act must be occasioned solely by the
violence of nature. Human intervention is to be excluded from
creating or entering into the cause of the mischief. When the
effect is found to be in part the result of the participation of
man, whether due to his active intervention or neglect or failure
to act, the whole occurrence is then humanized and removed
from the rules applicable to the acts of God.
In the case at bar, although the typhoon "Kading" was an act of
God, petitioners can not escape liability because their
negligence was the proximate cause of the loss and damage.
The Court of Appeals found that:
As hereinabove stated, it has been shown that the
defendants failed to take the necessary safeguards to
prevent the danger that the Angat Dam posed in a situation
of such nature as that of typhoon "Kading". The
representative of the "PAG-ASA" who testified in these
proceedings, Justo Iglesias, Jr., stated that based on their
records the rainfall on October 26 and 27, 1978 is classified
only as moderate, and could not have caused flash floods.
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He testified that flash floods exceeds 50 millimeters per hour
and lasts for at least two (2) hours. He stated that typhoon
"Yaning" which occurred on October 7 to 14, 1978 gave a
much heavier rainfall than "Kading", and so did other
previous typhoons. 11
This was corroborated by the testimonies of private
respondents, most of whom have lived in the area all their
lives, but had never before experienced such flooding as
would have placed them on alert, even during previous
stronger typhoons such as "Dading" and "Yoling."
What more, when the evidence shows that as early as October
25, 1978 the newspapers had announced the expected
occurrence of a powerful typhoon code-named "Kading". On
October 26, 1978, Bulletin Today had as its headline the
coming of the typhoon. Despite these announcements, the
water level in the dam was maintained at its maximum from
October 21, until midnight of October 26, 1978. At 2100 hrs. of
October 26, 1978, NPC started to open the three floodgates
simultaneously from 1 meter to 8 meters at 0100 hrs. of
October 27, 1978, until all floodgates were opened to the
maximum of 14 to 14.5 meters by 0600 hrs. of the same day.
Further, We cannot give credence to petitioners' contention
that the damage caused by the opening of the dam was in the
nature of damnum absque injuria, which presupposes that
although there was physical damage, there was no legal injury
in view of the fortuitous events. There is no question that
petitioners have the right, duty and obligation to operate,
maintain and preserve the facilities of Angat Dam, but their
negligence cannot be countenanced, however noble their
intention may be. The end does not justify the means,
particularly because they could have done otherwise than
simultaneously opening the spillways to such extent. Needless
to say, petitioners are not entitled to counterclaim.
Petitioners insist that their giving of prior written warning should
absolve them from liability. Notice of warning was served by
them on "a responsible employee in the office of the mayor of
the municipality, or in the absence of such responsible
employee, on a member of the municipal police force." That
being the case, they alleged that the presumption that official
duty has been performed must be credited in their favor. The
presumption was, however, refuted by the evidence and
testimonies of respondents who all denied having been given
any warning that the spillways would be opened to such extent
and at a short period of time.
The letter itself, addressed merely "TO ALL CONCERNED",
would not strike one to be of serious importance, sufficient
enough to set alarm and cause people to take precautions for
their safety's sake. As testified to by driver Leonardo Garcia of
the NPC, he was instructed by Chavez to give notice "to any
personnel of the municipality [sic] or even the policemen of the
municipalities concerned regarding the release of water from
the reservoir." His instructions did not specify the municipal
officer who should receive the notice, but that priority must be
given to the police.
As observed by the Court of Appeals:
Clearly, the notices were not delivered, or even addressed to
responsible officials of the municipalities concerned who
could have disseminated the warning properly. They were
delivered to ordinary employees and policemen. As it
happened, the said notices do not appear to have reached
the people concerned, which are the residents beside the
Angat River. The plaintiffs in this case definitely did not
receive any such warning. Indeed, the methods by which the
defendants allegedly sent the notice or warning was so
ineffectual that they cannot claim, as they do in their second
assignment of error, that the sending of said notice has
absolved them from liability.
EMERGENCY RULE
48. GEORGE MCKEE and ARACELI KOH MCKEE vs. IAC
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
FACTS: This case springs from a civil case for damages
based on quasi-delict filed as a result of a vehicular accident
which led to the deaths of Jose Koh, Kim Koh McKee and
Loida Bondoc and caused physical injuries to George Koh
McKee, Christopher Koh McKee and petitioner Araceli Koh
McKee.
Petitioners are the heirs of the ones involved in the accident.
Upon the other hand, private respondents are the owners of
the cargo truck which figured in the mishap; a certain Ruben
Galang was the driver of the truck at the time of the accident.
Between nine and ten o'clock in the morning of 8 January
1977, in Pulong Pulo Bridge along MacArthur Highway,
between Angeles City and San Fernando, Pampanga, a head-
on-collision took place between an International cargo truck,
Loadstar, owned by private respondents, and driven by Ruben
Galang, and a Ford Escort car driven by Jose Koh.
The collision resulted in the deaths of Jose Koh, Kim Koh
McKee and Loida Bondoc, and physical injuries to George Koh
McKee, Christopher Koh McKee and Araceli Koh McKee, all
passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the
mother of minors George, Christopher and Kim Koh McKee.
Loida Bondoc, on the other hand, was the baby sitter of one
and a half year old Kim. At the time of the collision, Kim was
seated on the lap of Loida Bondoc who was at the front
passenger's seat of the car while Araceli and her two (2) sons
were seated at the car's back seat.
Immediately before the collision, the cargo truck, which was
loaded with two hundred (200) cavans of rice weighing about
10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila.
The Ford Escort, on the other hand, was on its way to Angeles
City from San Fernando. When the northbound car was about
(10) meters away from the southern approach of the bridge,
two (2) boys suddenly darted from the right side of the road
and into the lane of the car. The boys were moving back and
forth, unsure of whether to cross all the way to the other side or
turn back. Jose Koh blew the horn of the car, swerved to the
left and entered the lane of the truck; he then switched on the
headlights of the car, applied the brakes and thereafter
attempted to return to his lane. Before he could do so, his car
collided with the truck. The collision occurred in the lane of the
truck, which was the opposite lane, on the said bridge.
The sketch prepared by the investigating officers, the bridge is
described to be sixty (60) "footsteps" long and fourteen (14)
"footsteps" wide — seven (7) "footsteps" from the center line to
the inner edge of the side walk on both sides. Pulong Pulo
Bridge, which spans a dry brook, is made of concrete with soft
shoulders and concrete railings on both sides about three (3)
feet high.
The sketch of the investigating officer discloses that the right
rear portion of the cargo truck was two (2) "footsteps" from the
edge of the right sidewalk, while its left front portion was
touching the center line of the bridge, with the smashed front
side of the car resting on its front bumper. The truck was about
sixteen (16) "footsteps" away from the northern end of the
bridge while the car was about thirty-six (36) "footsteps" from
the opposite end. Skid marks produced by the right front tire of
the truck measured nine (9) "footsteps", while skid marks
produced by the left front tire measured five (5) "footsteps."
The two (2) rear tires of the truck, however, produced no skid
marks.
In his statement to the investigating police officers immediately
after the accident, Galang admitted that he was traveling at
thirty (30) miles (48 kilometers) per hour.
An Information charging Ruben Galang with the crime of
"Reckless Imprudence Resulting to Multiple Homicide and
Physical Injuries and Damage to Property" was filed.
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Respondents asserted that it was the Ford Escort, driven by
Jose Koh which "invaded and bumped the lane of the truck
driven by Ruben Galang.”
ISSUE: WON Jose Koh was negligent.
HELD: No.
Negligence was defined and described by this Court
in Layugan vs. Intermediate Appellate Court, 47 thus:
. . . Negligence is the omission to do something which a
reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man
would not do (Black's Law Dictionary, Fifth Edition, 930), or as
Judge Cooley defines it, "(T)he failure to observe for the
protection of the interests of another person, that degree of
care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury." (Cooley on
Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than
seventy years ago but still a sound rule, (W)e held:
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that(reasonable care and
caution which an ordinarily prudent person would have used in
the same situation?) If not, then he is guilty of negligence. The
law here in effect adopts the standard supposed to be supplied
by the imaginary conduct of the discreet paterfamiliasof the
Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . Negligence is want of the care required
by the circumstances. It is a relative or
comparative, not an absolute, term and its
application depends upon the situation of the
parties and the degree of care and vigilance
which the circumstances reasonably require.
Where the danger is great, a high degree of
care is necessary, and the failure to observe
it is a want of ordinary care under the
circumstances. (citing Ahern v. Oregon
Telephone Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence
and the facts obtaining in this case, it is manifest that no
negligence could be imputed to Jose Koh.
Any reasonable and ordinary prudent man would have tried to
avoid running over the two boys by swerving the car away from
where they were even if this would mean entering the opposite
lane. Avoiding such immediate peril would be the natural
course to take particularly where the vehicle in the opposite
lane would be several meters away and could very well slow
down, move to the side of the road and give way to the
oncoming car. Moreover, under what is known as the
emergency 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."
Considering the sudden intrusion of the two (2) boys into the
lane of the car, We find that Jose Koh adopted the best means
possible in the given situation to avoid hitting them. Applying
the above test, therefore, it is clear that he was not guilty of
negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it
cannot be said that his negligence was the proximate cause of
the collision.
‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez
by: Angit, Masiga, Respicio & Solis ®
Applying the above definition, although it may be said that the
act of Jose Koh, if at all negligent, was the initial act in the
chain of events, it cannot be said that the same caused the
eventual injuries and deaths because of the occurrence of a
sufficient intervening event, the negligent act of the truck
driver, which was the actual cause of the tragedy. The entry of
the car into the lane of the truck would not have resulted in the
collision had the latter heeded the emergency signals given by
the former to slow down and give the car an opportunity to go
back into its proper lane. Instead of slowing down and
swerving to the far right of the road, which was the proper
precautionary measure under the given circumstances, the
truck driver continued at full speed towards the car. The truck
driver's negligence becomes more apparent in view of the fact
that the road is 7.50 meters wide while the car measures 1.598
meters and the truck, 2.286 meters, in width. This would mean
that both car and truck could pass side by side with a
clearance of 3.661 meters to spare. 51 Furthermore, the bridge
has a level sidewalk which could have partially accommodated
the truck. Any reasonable man finding himself in the given
situation would have tried to avoid the car instead of meeting it
head-on.
The truck driver's negligence is apparent in the records. He
himself said that his truck was running at 30 miles (48
kilometers) per hour along the bridge while the maximum
speed allowed by law on a bridge 52 is only 30 kilometers per
hour. Under Article 2185 of the Civil Code, a person driving a
vehicle is presumed negligent if at the time of the mishap, he
was violating any traffic regulation. We cannot give credence to
private respondents' claim that there was an error in the
translation by the investigating officer of the truck driver's
response in Pampango as to whether the speed cited was in
kilometers per hour or miles per hour. The law presumes that
official duty has been regularly performed; 53 unless there is
proof to the contrary, this presumption holds. In the instant
case, private respondents' claim is based on mere conjecture.
The truck driver's negligence was likewise duly established
through the earlier quoted testimony of petitioner Araceli Koh
McKee which was duly corroborated by the testimony of
Eugenio Tanhueco, an impartial eyewitness to the mishap.
VIOLENTI NON-FIT INJURIA
49. THE ILOCOS NORTE ELECTRIC COMPANY vs. CA
FACTS: On the evening of June 28 until the early morning of
June 29, 1967 a strong typhoon buffeted the province of Ilocos
Norte, bringing heavy rains and consequent flooding in its
wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the
typhoon had abated and when the floodwaters were beginning
to recede the deceased Isabel Lao Juan, fondly called Nana
Belen, ventured out of the house of her son-in-law Antonio
Yabes and proceeded northward towards the direction of the
Five Sisters Emporium (Nana Belen is the owner) to look after
the merchandise therein that might have been damaged.
Wading in waist-deep flood on Guerrero, the deceased was
followed by Aida Bulong, a Salesgirl at the Five Sisters
Grocery, also owned by the deceased, and by Linda Alonzo
Estavillo, a ticket seller at the YJ Cinema, which was partly
owned by the deceased. Aida and Linda walked side by side at
a distance of between 5 and 6 meters behind the deceased,
Suddenly, the deceased screamed "Ay" and quickly sank into
the water. The two girls attempted to help, but fear dissuaded
them from doing so because on the spot where the deceased
sank they saw an electric wire dangling from a post and
moving in snake-like fashion in the water.
When Antonio Yabes was informed by Ernesto that his mother-
in law had been electrocuted, he acted immediately and ask
the people of defendant Ilocos Norte Electric Company or
INELCO to cut off the electric current. Nana Belen died and her
body was recovered about two meters from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June
29, 1967, Engineer Antonio Juan, Power Plant Engineer of the
NaPoCor noticed certain fluctuations in their electric meter
which indicated such abnormalities as grounded or short-
circuited lines. Between 6:00 and 6:30 A.M., he set out an
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inspection. On the way, he saw grounded and disconnected

lines. Electric lines were hanging from the posts to the ground.
Since he could not see any INELCO lineman, he decided to go
to the INELCO Office. As he turned right at the intersection of
Guerrero and Rizal, he saw an electric wire about 30 meters
long strung across the street "and the other end was seeming
to play with the current of the water." Finding the Office of the
INELCO still closed, and seeing no lineman therein, he
returned to the NPC Compound.

ISSUES: WON petitioner may be held liable for the deceased's

death.

HELD: Yes.

While it is true that typhoons and floods are considered Acts of

God for which no person may be held responsible, it was not
said eventuality which directly caused the victim's death. It was
through the intervention of petitioner's negligence that death
took place.

Indeed, petitioner was negligent in seeing to it that no harm is

done to the general public"... considering that electricity is an
agency, subtle and deadly, the measure of care required of
electric companies must be commensurate with or
proportionate to the danger. "When an act of God combines or
concurs with the negligence of the defendant to produce an
injury, the defendant is liable if the injury would not have
resulted but for his own negligent conduct or omission".

Likewise, the maxim "volenti non fit injuria1" relied upon by

petitioner finds no application in the case at bar. It is imperative
to note the surrounding circumstances which impelled the
deceased to leave the comforts of a roof and brave the
subsiding typhoon. As testified by the witnesses, the deceased
was on her way to the grocery store "to see to it that the goods
were not flooded." For it has been held that a person is
excused from the force of the rule, that when he voluntarily
assents to a known danger he must abide by the
consequences, if an emergency is found to exist or if the life or
property of another is in peril, or when he seeks to rescue his
endangered property. Clearly, an emergency was at hand as
the deceased's property, a source of her livelihood, was faced
with an impending loss. Furthermore, the deceased, at the time
the fatal incident occurred, was at a place where she had a
right to be without regard to petitioner's consent as she was on
her way to protect her merchandise.

1 Volenti non fit iniuria (Latin: "to a willing person, injury is not done") is a common
law doctrine which states that if someone willingly places themselves in a position
where harm might result, knowing that some degree of harm might result, they are not
able to bring a claim against the other party in tort or delict.

‘Give what you can, do what you can, God will cover the difference. There is no shortage in God.” –Bo Sanchez |Page 36 of 36