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(1) Presumption of Negligence* Art.

2184: 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. Art. 2185: Unless there is proof to the contrary, it is presumed that 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, Aug. 25, 1989 FACTS: The accident happened on the National Highway at 10:30 A.M. on August 2, 1982. The jeepney driven by Lope Grajera was then corning from Pila, Laguna on its way towards the direction of Sta. Cruz, traversing the old highway. As it reached the intersection where there is a traffic sign 'yield,' it stopped and cautiously treated the intersection as a "Thru Stop' street, which it is not. The KBL bus was on its way from Sta. Cruz, Laguna, driven by its regular driver Virgilio Llamoso, on its way towards Manila. The regular itinerary of the KBL bus is through the town proper of Pila, Laguna, but at times it avoids this if a bus is already fully loaded with passengers and can no longer accommodate additional passengers. As the KBL bus neared the intersection, Virgilio Llamoso inquired from his conductor if they could still accommodate passengers and learning that they were already full, he decided to bypass Pila and instead, to proceed along the national highway. Virgilio Llamoso admitted that there was another motor vehicle ahead of him.. It was alleged that Llamoso drove at a high speed overtaking the other vehicles and later smashed a Jeepney. Such accident resulted to damages to property and physical injuries, to which a complaint was filed by KBL against the Coronado drivers of the other vehicles (KBL believed that the best defense was offense) Coronado et al also filed their respective counter-claim for damages against KBL. A third-party complaint and/or a complaint for intervention was also filed in the same case against KBL by jeepney passenger Dionisio Shinyo. TC and CA ruled that KBL is liable. But TC did not hold KBL driver Llamoso liable for damages. ISSUE: WON the bus company is liable to pay damages to Coronado et. al. considering that TC did not hold its driver liable? HELD: Yes. KBL is liable. Kapalarans driver had become aware that some vehicles ahead of the bus and traveling in the same direction had already stopped at the intersection

obviously to give way either to pedestrians or to another vehicle about to enter the intersection. The bus driver, who was driving at a speed too high to be safe and proper at or near an intersection on the highway, and in any case too high to be able to slow down and stop behind the cars which had preceded it and which had stopped at the intersection, chose to swerve to the left lane and overtake such preceding vehicles, entered the intersection and directly smashed into the jeepney within the intersection. Immediately before the collision, the bus driver was actually violating the following traffic rules and regulations, among others, in the Land Transportation and Traffic Code, Republic Act No. 4136, as amended. Thus, a legal presumption arose that the bus driver was negligent, a presumption that Kapalaran was unable to overthrow. KBL assailed the award of damages against it since its driver was not held liable for damages. This contention in thoroughly unpersuasive. 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. If petitioner Kapalaran was interested in maintaining its right of recourse against or reimbursement from its own driver, it should have appealled from that portion of the trial court's decision which had failed to hold the bus driver is not "merely subsidiary," and is not limited to cases where the employee "cannot pay his liability" nor are private respondents compelled first to proceed against the bus driver. The liability of the employer under 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.. *LAYUGAN vs. IAC* GR 73998 November 14, 1988 *FACTS* Layugan, a part-time security guard and a driver of cargo truck (during off-duty) along with a companion were then repairing the tire of their cargo truck which was parked along the right side of the National Road of Baretbet, Bagabag, Nueva Vizcaya, when Serrano, then driving an Isuzu truck recklessly bumped Layugan, causing the latter to sustain serious physical injuries and be hospitalized. Layugans injuries caused him an amputated leg. Consequently, Layugan filed a complaint for damages to cover the lifetime income that will be deprived of him (amounting to P70,000) plus attorneys fees against Isidro, the owner of the Isuzu truck driven by

Serrano. Layugan alleged that the injuries he sustained rendered him incapacitated for work depriving him of income (from security guard work and driving cargo truck during off-guard duty). Isidro admitted that he was the owner of the car driven by Serrano. But according to him, he should not be liable as his drivers action was not the proximate cause of the accident.. Instead, says Isidro, it was the failure of the driver of the cargo truck (the companion) to put EWD. Furthermore, Layugan was just a bystander then as his companion was the driver of the cargo truck. Nevertheless, Isidro filed a 3rd party complaint against its insurance company (Travellers Multi Indemnity Corp./ Travellers). Travellers answered that it cannot exceed the limit stipulated in the insurance policy and that the accident was due to the gross negligence of the driver, which is not covered by the same insurance policy. Thus, it only paid Isidro P18,000 to cover the damages sustained by the truck and not the 3rd party liability (Layugans claims).. RTC in favor of Layugan. IAC reversed the decision and dismissed Layugans complaint, 3rd party complaint and counter-claims. IACs ruling was based on the doctrine of Res Ipsa Loquitor. ISSUES: Won IAC correctly applied the doctrine of "res ipsa loquitur" (the thing speaks for itself) with proper jurisprudential basis in the case? RULING: No. IAC incorrectly applied the doctrine. The DOCTRINE OF RES IPSA LOQUITUR means The thing speaks for itself. It pertains to the rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendants exclusive control, and that the accident was one which ordinarily does not happen in the absence of negligence. In the instant case, the contention of Isidro regarding early warning device was actually complied with by Layugan because of the presence of a lighted kerosene lamp installed by the driver of the parked truck three to four meters from the rear of the same truck. Therefore, Serrano, the driver was the one negligent. *RULE OF EVIDENCE: *The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience.. 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. The doctrine can only be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available.

The private respondent is sued under Art. 2176 in relation to Art. 2180 (par 5) of the NCC. In the latter, when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection, or both. Such presumption is *juris tantum *and not *juris et de jure *and consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in the selection and in the supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability. In disclaiming liability for the incident, the private respondent stresses that the negligence of his employee has already been adequately overcome by his driver's statement that he knew his responsibilities as a driver and that the truck owner used to instruct him to be careful in driving. But this contention is untenable. In the first place, it is clear that the driver did not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If he did, he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moveover, to our mind, the fact that the Isidro used to instruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any accident, as found by the respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts established at the trial. The private respondent or his mechanic, who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver to the petitioner. But even if we concede that the diligence of a good father of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased. G.R. No. 156940 December 14, 2004 ASSOCIATED BANK (Now WESTMONT BANK), petitioner, vs. VICENTE HENRY TAN, respondent.

The Facts Vicente Henry Tan)is a businessman and a regular depositor-creditor of the Associated Bank . Sometime in September 1990, he deposited a postdated UCPB check with the said BANK in the amount of P101,000.00 issued to him by a certain Willy Cheng from Tarlac. The check was duly entered in his bank record thereby making his balance in the amount of P297,000.00, as of October 1, 1990, from his original deposit of P196,000.00. Allegedly, upon advice and instruction of the BANK that the P101,000.00 check was already cleared and backed up by sufficient funds, TAN, on the same date, withdrew the sum of P240,000.00, leaving a balance of P57,793.45. A day after, TAN deposited the amount of P50,000.00 making his existing balance in the amount of P107,793.45, because he has issued several checks to his business partners. "However, his suppliers and business partners went back to him alleging that the checks he issued bounced for insufficiency of funds. Thereafter, TAN, thru his lawyer, informed the BANK to take positive steps regarding the matter for he has adequate and sufficient funds to pay the amount of the subject checks. Nonetheless, the BANK did not bother nor offer any apology regarding the incident. Consequently, TAN filed a Complaint for Damages against the BANK. Issue: Whether the bank did not cause damage to Mr Tan in the fact that they did not inform MR. Tan in the insufficiency of funds? Ruling: Petion is denied, affirming the decision of Court of Appeals that the Associated Bank is guilty of Negligence. As a general rule, a bank is liable for the wrongful or tortuous acts and declarations of its officers or agents within the course and scope of their employment. Due to the very nature of their business, banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees. Jurisprudence has established that the lack of diligence of a servant is imputed to the negligence of the employer, when the negligent or wrongful act of the former proximately results in an injury to a third person; in this case, the depositor. Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is demandable. "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." G.R. No. L-57079 September 29, 1989 PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, vs. COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents. This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental by private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968 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. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the windshield of the jeep was shattered. PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their own negligence. CFI IN FAVOR OF THE RESPONDENT SPOUSES CA reversed the decision Issue: Whether PLDT is liable due to negligence to the respondent spouses? Ruling: WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and AFFIRMED. 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. 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. 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. Ylarde vs. Aquino* July 29, 1988 ** *FACTS: *Edgardo Aquino, a teacher in Gabaldon Primary School gathered his male students aged 10-11 to clean-up the remnants of WWII. They had to dig a hole to bury the concrete blocks. He left while the work was unfinished and the kids, jumped in the pit. One of the kids jumped on the concrete block causing it to fall in the pit and pinning Ylarde who was not able to get out of the in time. Ylarde sustained injuries which caused his death 3 days later. The Ylardes (mom and dad) sued Aquino and Soriano, the principal for

damages. *TC: *dismissed the complaint. 1. digging was part of work education 2. Aquino exercised utmost diligence 3. Ylardes death was due to his own reckless imprudence. ** *CA: *Affirmed TC *ISSUE: *WON both Aquino and Soriano may be held liable. ** *HELD: Aquino is liable for indemnity, ED and MD under 2176 (art. The petition is based on) and may* *be held liable under 2180. Soriano, as a head of an academic school, cannot be held liable. CA* *reversed and set aside.* *1. Soriano cannot be held liable * a. He is a Head of an academic school and not of a school of arts and trades (in line with Amadora) b. He did not order the digging *2. Ylarde may be held liable under 2180 as the teacher-in-charge* He was negligent in his supervision and he failed to take the necessary precautions. *BUT, the Ylardes based their petition on 2176.* *3. Aquino is liable for damages under 2176 *(Q: WON the act or omission of Aquino amounting to fault or negligence has a direct causal connection to Ylardes death) a. 5 negligent acts of Aquino

i. he shouldve used adult laborers and not 10 year olds ii. he required the kids to remain inside the pit, knowing that a huge block was just nearby iii. the stone was obviously at the brink of falling, yet he require the kids to level the soil around the excavation iv. he left the kids v. he left the kids near an attractive nuisance b. the negligent act of Aquino in leaving the kids in such a dangerous site has a direct causal connection to the death of Ylarde. It was but natural for kids to play around c. digging was not part of work education d. a truly careful and cautious person wouldve acted in all contrast to the way Aquino did. ** *4. Ylarde cannot be charged with reckless imprudence* The degree of care required to be exercised must vary with the capacity of the person to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. The standard of conduct to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances.