Picart saw the automobile coming and heard the warning
signals. However he did not move his horse to the other lane,
TORTS REPORT: NEGLIGENCE AS PROXIMATE CAUSE
A. Definition
Among the elements that the plaintiff suing for negligence will
have to prove is that the defendant's violation of a duty was the
actual and proximate cause of his or her injuries.
Negligence : is statutorily defined to be the omission of
that degree of diligence which is required by
the nature of the obligation and
corresponding to the circumstances of
persons, time and place.
: Failure to exercise the care that a
reasonably prudent person would exercise.
: Failure to observe degree of care,
precaution and vigilance that the
circumstances justly demand, whereby that
other person suffers injury.
Proximate cause: means “legal cause,” or one that the law
recognizes as the primary cause of the injury.
: 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.
: It is determined by the facts of each case
upon mixed considerations of logic, common
sense, policy and precedent.
G.R. No. L-12219March 15, 1918
AMADO PICART vs FRANK SMITH, JR.
FACTS:
(An appealed case base on the decision of the lower court -
Court of First Instance of Prov. Of La Union.)
On December 12, 1912, at the Carlatan Bridge, Amado Picart
was riding his horse. Before he had gotten half way across,
Frank Smith approached from the opposite direction in an
automobile, going at the rate of about 10 to 12 miles per hour.
As Smith neared the bridge he saw Picart and blew his horn to
give warning of his approach. He continued his course and
after he had taken the bridge he gave 2 more successive blast,
as it appeared to him that Picart was not observing the rule of
the road.
TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
instead he moved his horse closer to the railing. His reason
was that, he thought he did not have sufficient time to get over
the other side. The horse (pony) did not yet exhibit fright so
Snith, instead of veering to the right while yet some distance
away, continued driving towards Picart without slowing down
and when he was already near the horse he quickly turned his
car to the right side to escape. But the horse got scared so it
turned its body across the bridge; the horse was struck on the
hock of the left hind leg by the flange of the car and the limb
was broken. The horse fell and Picart was thrown out with
some violence. As a result of its injuries the horse died and
Picart received contusions which caused temporary
unconsciousness and required medical attention for several
days.
RULING OF THE LOWER COURT:
Frank Smith was absolved from liability
ISSUE:
Whether or not Smith, in maneuvering his car was guilty of
negligence.
RULING:
Yes.
To determine the existence of negligence in the particular case
may be stated as follows: Did the defendant (Smith) in doing
the alleged negligent act use what that person would have
used in the same situation? If not, then he is guilty of
negligence.
Applying this test to the conduct of the defendant in the present
case, we (Court) think that negligence is clearly established. A
prudent man, placed in the position of the defendant, would in
our (Court) opinion, have recognized that the course which he
was pursuing was fraught with risk and would therefore have
foreseen harm to the horse and the rider as reasonable
consequence of that course. Under these circumstances the
law imposed on the defendant the duty to guard against the
threatened harm.
But the plaintiff (Picart) was not free from fault, for he was
guilty of antecedent negligence in planting himself on the
wrong side of the road. But as what was already stated, the
defendant was also negligent and in such case the problem
always is to discover which agent is immediately and directly
responsible.
Under these circumstances, the law said that the person who
has the LAST CLEAR CHANCE to avoid the impending harm
and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party. This in this
case was Frank Smith.
G.R. No. L-29889 May 31, 1979
VICTORINO CUSI and PILAR POBRE vs PHILIPPINE
NATIONAL RAILWAYS
FACTS:
On the night of October 5, 1963, Sps. Cusi and Pobre attended
a birthday party inside the United Housing Subdivision in
Paranaque, Rizal. After the party which broke up at about 11
o'clock that evening, they proceeded home in their Vauxhall car
with 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 slack ened 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 Cusi and Pobre 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. Later, the Cusi and
Pobre were transferred to the Philippine General Hospital. A
week later, Mrs. Cusi transferred to the Manila Doctors
Hospital where Dr. Manuel Rivera, head of the Orthopedic and
Fracture Service of the Philippine General Hospital performed
on her a second operation and continued to treat her until her
discharge from the hospital on November 2, 1963.
For these injuries, she underwent a total of four surgical opera.
Petition run for a period of two years. 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. Up
to the time she took the witness stand in August, 1966, she still
had an intermedullary nail in the bone of her right arm.
Likewise, Victorino Cusi suffered brain injuries which affected
his speech, memory, sense of hearing and neck movement.
For a long period, he also felt pain all over his body. Victorino
Cusi claimed that prior to the accident he was a successful
businessman. 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. She
also bore ugly scars on several parts of her body, and she
suffered anxiety of a possible miscarriage being then five (5)
months pregnant at the time of the accident.
The defense is centered on the proposition that the gross
negligence of Victorino Cusi was the proximate cause of the
collision; that had he made a full stop before traversing the
crossing as required by section 56(a) of Act 3992 (Motor
Vehicle Law), he could have seen and heard the approach of
the train, and thus, there would have been no collision.
LOWER COURT’S DECISION:
Court of First Instance of Rizal ordering defendant-appellant to
indemnify the plaintiffs- appellees in the total amount of Two
Hundred Thirty-Nine Thousand and Six Hundred Forty-Eight
Pesos, and Seventy-Two Centavos (P239,648.72) for injuries
received in a collision caused by the gross negligence of
defendant-appellant, plus Ten Thousand Pesos (P10,000.00)
as attorney's fees and expenses of litigation.
ISSUE:
Whether or not Victorino Cusi was negligent and such was the
proximate cause of the collision.
HELD:
No.
The judicial pronouncement below that 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 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
TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
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. 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.
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. The
Court 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.
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 -him 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.
JUDGEMENT:
The judgment of the lower court is hereby AFFIRMED with the
modification that the total amount of damages shall bear legal
interest at six per cent (6%) from the rendition of the decision
dated March 26, 1968.
2. Circumstances to consider in determining Negligence
a) Time
Obviously, the time of the day may affect the diligence
required of the actor. (Article 1173, Civil Code). A driver is
required to exercise more prudence if he is driving at night. In
fact, running in a dark place requires a different degree of care
compared to running in the light of day.
In People vs. Ramirez (48 Phil. 204 [1925]), the
accused shot his companion while they were hunting at night.
He alleged that “he seemed to have seen with his lantern
something like the eyes of a deer, about 50 meters from him
then he shot it.”
The Supreme Court rejected the argument stating that
a person who was carrying a firearmto hunt at nighttime with
the aid of a lantern knowing that he had two companions
should have exercised all the necessary diligence to avoid
every undesirable accident.
b) Place
The place of the incident is also material. A man who
should have occasion to discharge a gun on an open and
extensive marsh, or in a forest would be required to use less
circumspection and care, than if he were to do the same thing
in an inhabited town, village, or city. (Brown vs. Kendall, 60
Mass. 292 [1850]; see also People vs. Cusi, CA 68 O.G. 2777).
c) Emergency Rule
The “emergency rule” was applied is McKee vs.
Intermediate Appellate Court (211 SCRA 517 [1992]). One of
the plaintiffs therein swerved his vehicle in order to avoid
hitting two (2) children. The Supreme Court explained that “any
reasonable and ordinary prudent man would have tried to
avoid running over two boys by swerving the car away from
where they where even if this would mean entering the
opposite lane.
Exception: the emergency in which
he finds himself is brought about by
his own negligence.
d) Gravity of harm to be avoided
Even if the odds that an injury will result is not high,
harm may still be considered foreseeable if the gravity of harm
to be avoided is great. Thus, in one case (Consolacion Junio
vs. Manila Railroad Company, 58 Phil. 176 [1933]),
e) Alternative course of Action
In McKee vs. Intermediate Appellate Court (supra, at
55), the gravity of injury which will result if the alternative
course of action was taken by the actor was also considered.
f) Social Value or utility of Activity
The absence of a viable alternative should also be
examined in the light of the social value of the activity involved.
The diligence which the law requires an individual to observe
and exercise varies according to the nature of the situation
which he happens to be in, and the importance of the act which
he has to perform. (Bulilan vs. Commission of Audit, 285 SCRA
445, 453 [1998]).
Thus, in Manila Electric Co. vs. Remoquillo, it was
evident that the danger of using uninsulated high voltage wires
was disregarded because of the social value of providing
electricity to the public.
g) Person exposed to Risk
The character of the person exposed to the risk is
also a circumstance which should be considered in
determining negligence. Consistent with this rule, a higher
degree of diligence is required if the person involved is a child.
In United States vs. Clemente (24 Phil. 178), for instance, the
Supreme Court explained that greater degree of care in driving
is owed to children in the streets.
B. “Cause”
Cause: Act or omission is the legal cause of negligence.
In the case of AGUSAN DEL NORTE ELECTRIC
COOPERATIVE, INC. (ANECO) vs.BALEN
G.R. No. 173146 November 25, 2009, the court held:
TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
x x x – Where the particular harm was reasonably foreseeable
at the time of the defendant’s misconduct, his act or omission
is the legal cause thereof. Foreseeability is the fundamental
test of the law of negligence. To be negligent, the defendant
must have acted or failed to act in such a way that an ordinary
reasonable man would have realized that certain interests of
certain persons were unreasonably subjected to a general but
definite class of risk which made the actor’s conduct negligent,
it is obviously the consequence for the actor must be held
legally responsible. Otherwise, the legal duty is entirely
defeated. Accordingly, the generalization may be formulated
that all particular consequences, that is, consequences which
occur in a manner which was reasonably foreseeable by the
defendant at the time of his misconduct are legally caused by
his breach of duty x x x.
C. Proof of Negligence
The quantum of proof required in preponderance of
evidence (RULES OF COURT, RULE 133, Sec 1).
Rule 133: Weight and Sufficiency of Evidence
SECTION 1. Preponderance of evidence, how
determined. — In civil cases, the party having burden
of proof must establish his case by a preponderance
of evidence. In determining where the preponderance
or superior weight of evidence on the issues involved
lies, the court may consider all the facts and
circumstances of the case, the witnesses’ manner of
testifying, their intelligence, their means and
opportunity of knowing the facts to which there are
testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their
interest or want of interest, and also their personal
credibility so far as the same may legitimately appear
upon the trial. The court may also consider the
number of witnesses, though the preponderance is
not necessarily with the greater number.
Burden of Proof
General Rule:
Plaintiff alleging damage due to negligent acts in his
complaint has the burden of proving such negligence.
(TAYLOR vs. MERALCO, G.R. No. L-8328, May 18,
1956)
Exceptions:
When the rules or the law provide for cases when
negligence is presumed (AQUINO, Torts and
Damages, supra at 135-136)
Jurisprudence
TAYLOR vs. MERALCO, G.R. No. L-8328, May 18, 1956
FACTS:
An action to recover damages for the loss of an eye
and other injuries, instituted by David Taylor, a minor, by his
father, his nearest relative. The defendant is a foreign
corporation engaged in the operation of a street railway and an
electric light system in the city of Manila. The plaintiff, David
Taylor, was at the time when he received the injuries
complained of, 15 years of age.
On the 30th of September, 1905 David together with
his companion Manuel Claparols went to the company’s
premises and found some twenty or thirty brass fulminating
caps scattered on the ground. They tried to break the cap with
a stone and hammer but failed, so they opened one of the
caps with a knife and finding that it was filed with a yellowish
substance they lighted it with a match and explosion followed
causing them more or less injuries and to the removal of the
right eye of David.
So this action arises and the trial court ruled in favor
of the plaintiff.
RULING OF THE LOWER COURT:
The claim of the plaintiff shows that evidence in the
record sufficiently establishes the contrary, and justifies the
court in drawing the reasonable inference that the caps found
on its premises were its property.
Thus, applying the provisions of the Articles 1089 of
the Civil Code read together with articles 1902, 1903, and 1908
of that Code, the company is liable for the damage which was
occurred.
Not satisfied with the decision of lower court, counsel
for defendant and appellant rests his appeal strictly upon his
contention that the facts proven at the trial do not establish the
liability of the company under the provisions of these articles.
ISSUE:
Whether or not David is entitled to damages?
HELD:
In the case at bar, 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
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
TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
incurred but for the negligent 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.
We think it is quite clear that the immediate cause of
the explosion ,the accident which resulted in plaintiff’s injury
,was 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 cannot recover”.
SO ORDERED. Judgment of the court below
reversed.
Note:
Doctrine of Contributory Negligence
If the negligence of the plaintiff cooperated with the
negligence of the defendant in bringing about the accident
causing the injury complained of, such negligence of the
plaintiff would be an absolute bar to recovery.
If the negligence of the plaintiff was merely
contributory to his injury, the immediate and proximate cause
of the accident causing the injury being the defendant’s
negligence, such negligence would not be a bar to recovery,
but the amount recoverable shall be mitigated by the court.
Contributory Negligence
Conduct on the part of the injured party, contributing
as a legal cause to the harm he has suffered, which falls below
the standard which he is required to conform for his own
protection.
There is contributory negligence when the party’s act
showed lack of ordinary care and foresight that such act could
cause him harm or put his life in danger. A plaintiff who is partly
responsible for his own injury should not be entitled to recover
damages but must bear the consequences of his own
negligence.
D. Presumption of Negligence
Article 2184, NCC:
In motor vehicle mishaps, the owner is solidarily liable with his
driver, if the former, who was in the vehicle, could have, by the
use of the due diligence, prevented the misfortune. It is
disputably presumed that a driver was negligent, if he had
been found guilty of reckless driving or violating traffic
regulations at least twice within the next preceding two months.
If the owner was not in the motor vehicle, the provisions of
article 2180 are applicable.
Article 2185, NCC:
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.
(Kapalaran Bus Line v. Coronado) (G.R. No. 85331; August 25,
1989)
Legal Issue:
Whether or not KAPALARAN BUS LINE is liable for damages
from the said collision
Facts of the Case:
The jeepney driven by Lope Grajera was then coming from
Pila, Laguna and traversing the an old highway towards Sta.
Cruz collided with a KBL bus driven by its regular driver Virgilio
Llamoso. As testified to by Atty. Conrado L. Manicad who was
driving a Mustang car coming from the direction of Sta. Cruz
and proceeding towards the direction of Manila, he stopped at
the intersection to give way to the jeepney driven by Grajera.
The sketch marked very clearly that the jeepney had already
traversed the intersection when it met the KBL bus head-on. It
is also obvious that the point of impact was on the right lane of
the highway which is the lane properly belonging to the
jeepney.
Judging from the testimony of Atty. Conrado L. Manicad and
the sketch (Exhibit 'E'), the sequence of events shows that the
first vehicle to arrive at the intersection was the jeepney.
Seeing that the road was clear, the jeepney which had stopped
at the intersection began to move forward, and for his part,
Atty. Manicad stopped his car at the intersection to give way to
the jeepney. The KBL bus had no more room within which to
stop without slamming into the rear of the vehicle behind the
car of Atty. Manicad. The KBL driver chose to gamble on
proceeding on its way, unfortunately, the jeepney driven by
Grajera, which had the right-of-way, was about to cross the
center of the highway and was directly on the path of the KBL
bus. The impact indicates that the KBL bus was travelling at a
fast rate of speed because, after the collision, it did not stop; it
travelled for another 50meters and stopped only when it hit an
electric post.
Ruling of the Court:
YES
KBL is liable for the damages in the collision.
The patent and gross negligence on the part of the petitioner
Kapalaran's driver raised the legal presumption that Kapalaran
as employer was guilty of negligence either in the selection or
in the supervision of its bus driver, where the employer is held
liable for damages; it has of course a right of recourse against
its own negligent employee. The liability of the employer under
TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
Article 2180 of the Civil Code is direct and immediate; it is not
conditioned upon prior recourse against the negligent
employee and a prior showing of the insolvency of such
employee. So far as the record shows, petitioner Kapalaran
was unable to rebut the presumption of negligence on its own
part.
The award of moral damages against petitioner Kapalaran is
not only entirely in order; it is also quite modest considering
Dionisio Shinyo's death during the pendency of this petition, a
death hastened by, if not directly due to, the grievous injuries
sustained by him in the violent collision.
Article 2188, NCC:
There is prima facie presumption of negligence on the part of
the defendant if the death or injury results from his possession
of dangerous weapons or substances, such as firearms and
poison, except when the possession or use thereof is
indispensable in his occupation or business. (n)
Doctrine of Res ipsa loquitor (The thing speaks for itself)
Black Law’s Dictionary: Res ipsa loquitur is rule of
evidence whereby negligence of alleged wrongdoer may be
inferred from mere fact that accident happened provided
character of accident and circumstances attending it lead
reasonably to belief that in absence of negligence it would not
have occurred and that thing which caused injury is shown to
have been under management and control of alleged
wrongdoer.
Under doctrine of “res ipsa loquitur” the happening of
an injury permits an inference of negligence where plaintiff
produces substantial evidence that injury was caused by an
agency or instrumentality under exclusive control and
management of defendant, and that the occurrence was such
that in the ordinary course of things would not happen if
reasonable care had been used.” (Layugan vs. Intermediate
Appellate Court, G.R. No. 73998, November 14, 1988).
The doctrine is not a rule of substantive law but
merely a mode of proof or a mere procedural convenience.
The rule, when applicable to the facts and circumstances of a
particular case, is not intended to and does not dispense with
the requirement of proof of culpable negligence on the part of
the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden
of plaintiff of proving a breach of the duty of due care.
Resort to the doctrine may be allowed only when (a)
the event is of a kind which does not ordinarily occur in the
absence of negligence; (b) other responsible causes, including
the conduct of the plaintiff and third persons, are sufficiently
eliminated by the evidence; and (c) the indicated negligence is
within the scope of the defendant’s duty to the plaintiff. Thus, it
is not applicable when an unexplained accident may be
attributable to one of several causes, for some of which the
defendant could not be responsible.

Res ipsa loquitur has application only to the law of

negligence (63 AmJur 2d at 721). It is confined only to cases of
pure (non-contractual) tort since obviously the presumption of
negligence in culpa contractual immediately attaches by a
failure of the covenant or its tenor.

TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus