GENERAL CONSIDERATION

Art 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for 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.
QUASI-DELICT/ CULPA AQUILIANA
Reqs:
(1) Act/omission
(2) Presence of fault or negligence (lack of due diligence)
Note: hence, in the absence of negligence, there can be
no award for damages. Mere suspicion basis of such
award.
(3) Damage to another
(4) Causal connection between the fault or negligence and
the damage.
TORTS vs QUASI DELICT
QD is known as culpa-aquiliana is a civil law concept while Torts
is Anglo-American or common law concept. Torts is broader than
culpa-aquiliana because it includes not only negligence, but
intentional criminal acts as well. However, Article 21 with Art 19
and 20, greatly broadened the scope of the law on civil wrongs; it
has become more supple and adaptable than the Anglo-American
law on torts.
MARIA BENITA DULAY vs CA
GR 108017 April 3, 1995
FACTS:
On December 7, 1988, an altercation between Benigno
Torzuela and Atty. Napoleon Dulay occurred at the Big Bang Sa
Alabang, Alabang Village, Muntinlupa as a result of which
Benigno Torzuela, the security guard on duty at the said carnival,
shot and killed Atty. Napoleon Dulay. Petitioner Maria Benita A.
Dulay, widow of the deceased Napoleon Dulay, in her own behalf
and in behalf of her minor children, filed an action for damages
against Benigno Torzuela and private respondents Safeguard
and/or Superguard, alleged employers of defendant Torzuela.
Respondent Superguard filed a Motion to Dismiss on the ground
that the complaint does not state a valid cause of action.
Superguard claimed that Torzuelas act of shooting Dulay was
beyond the scope of his duties, and that since the alleged act of
shooting was committed with deliberate intent (dolo), the civil
liability therefor is governed by Article 100 of the Revised Penal
Code. Superguard further alleged that a complaint for damages
based on negligence under Article 2176 of the New Civil Code,
such as the one filed by petitioners, cannot lie, since the civil
liability under Article 2176 applies only to quasi-offenses under
Article 365 of the Revised Penal Code. In addition, the respondent
argued that petitioners filing of the complaint is premature
considering that the conviction of Torzuela in a criminal case is a
condition sine qua non for the employers subsidiary liability.
Respondent Safeguard also filed a motion praying that it be
excluded as defendant on the ground that defendant Torzuela is
not one of its employees. Petitioners opposed both motions,
stating that their cause of action against the private respondents
is based on their liability under Article 2180 of the New Civil
Code. Respondent judge declared that the complaint was one for
damages founded on crimes punishable under Articles 100 and
103 of the Revised Penal Code as distinguished from those
arising from, quasi-delict.

ISSUE: WON Torzuela s act of shooting Napoleon Dulay

constitutes a quasi-delict actionable under Article 2176 of the
New Civil Code;
WON Article 33 of the New Civil Code applies only to
injuries intentionally committed; and
WON the liability or respondents is subsidiary under
the Revised Penal Code.
HELD/RATIO:
(1) Yes. Article 2176 of the New 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
relation between the parties is called a quasi-delict and is
governed by the provisions of this Chapter. Contrary to the
theory of private respondents, there is no justification for limiting
the scope of Article 2176 of the Civil Code to acts or omissions
resulting from negligence. Well-entrenched is the doctrine that
article 2176 covers not only acts committed with negligence, but
also acts which are voluntary and intentional.
(2) No. The term physical injuries in Article 33 has already been
construed to include bodily injuries causing death. It is not the
crime of physical injuries defined in the Revised Penal Code. It
includes not only physical injuries but also consummated,
frustrated, and attempted homicide. Although in the Marcia case,
it was held that no independent civil action may be filed under
Article 33 where the crime is the result of criminal negligence, it
must be noted, however, that Torzuela, the accused in the case at
bar, is charged with homicide, not with reckless imprudence,
whereas the defendant in Marcia was charged with reckless
imprudence. Therefore, in this case, a civil action based on Article
33 lies.
(3) No. Under Article 2180 of the New Civil Code, when an injury
is caused by the negligence of the 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. The
liability of the employer under Article 2180 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. Therefore, it is incumbent upon the private
respondents to prove that they exercised the diligence of a good
father of a family in the selection and supervision of their
employee.
QUASI-DELICT and CONTRACT
It has been ruled that tort liability can exist even if there are
already contractual relations.
AIR FRANCE vs CARRASCOSO
GR L-21438 September 29, 1966
FACTS:
Plaintiff, a civil engineer, was a member of a group of
48 Filipino pilgrims that left Manila for Lourdes on March 30,
1958.
On March 28, 1958, the defendant, Air France, through
its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a
"first class" round trip airplane ticket from Manila to Rome. From
Manila to Bangkok, plaintiff travelled in "first class", but at
Bangkok, the Manager of the defendant airline forced plaintiff to
vacate the "first class" seat that he was occupying because, in the
words of the witness Ernesto G. Cuento, there was a "white man",
who, the Manager alleged, had a "better right" to the seat. When

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asked to vacate his "first class" seat, the plaintiff, as was to be

expected, refused, and told defendant's Manager that his seat
would be taken over his dead body; a commotion ensued, and,
according to said Ernesto G. Cuento, "many of the Filipino
passengers got nervous in the tourist class; when they found out
that Mr. Carrascoso was having a hot discussion with the white
man [manager], they came all across to Mr. Carrascoso and
pacified Mr. Carrascoso to give his seat to the white man"
(Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his "first class" seat in the plane.

In parallel circumstances, we applied the foregoing legal precept;

and, we held that upon the provisions of Article 2219 (10), Civil
Code, moral damages are recoverable.

Was Carrascoso entitled to the first class seat he claims?

A contract to transport passengers is quite different in kind and

degree from any other contractual relation. 43 And this, because
of the relation which an air-carrier sustains with the public. Its
business is mainly with the travelling public. It invites people to
avail of the comforts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a public
duty. Neglect or malfeasance of the carrier's employees,
naturally, could give ground for an action for damages.

It is conceded in all quarters that on March 28, 1958 he paid to

and received from petitioner a first class ticket. But petitioner
asserts that said ticket did not represent the true and complete
intent and agreement of the parties; that said respondent knew
that he did not have confirmed reservations for first class on any
specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee
that he would have a first class ride, but that such would depend
upon the availability of first class seats.

Passengers
do
not
contract
merely
for
transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against
personal misconduct, injurious language, indignities and
abuses from such employees. So it is, that any rule or
discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the
carrier.

These are matters which petitioner has thoroughly presented

and discussed in its brief before the Court of Appeals under its
third assignment of error, which reads: "The trial court erred in
finding that plaintiff had confirmed reservations for, and a right
to, first class seats on the "definite" segments of his journey,
particularly that from Saigon to Beirut".

VILORIA vs CONTINENTAL AIRLINES

contract)
GR 188288 January 16, 2012
FACTS:

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance
of a first-class ticket was no guarantee that the passenger to
whom the same had been issued, would be accommodated in the
first-class compartment, for as in the case of plaintiff he had yet
to make arrangements upon arrival at every station for the
necessary first-class reservation. We are not impressed by such a
reasoning. We cannot understand how a reputable firm like
defendant airplane company could have the indiscretion to
give out tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and
yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of
business that the company should know whether or riot the
tickets it issues are to be honored or not.
ISSUE: WON Carrascoso was entitled to damages?
HELD: Yes.
RATIO:
Although true that there was no mention of bad faith in
the complaint, the inference of bad faith can be drawn from the
facts and circumstances therein. The petitioner violated its
contract of transportation with the aggravating circumstance
committed by its manager when it went to the extent of
threatening the plaintiff in the presence of many passengers.
The responsibility of an employer for the tortious act of
its employees need not be essayed. It is well settled in law. For
the willful malevolent act of petitioner's manager, petitioner, his
employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in
a manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.

(Quasi-delict and

On or about July 21, 1997 and while in the United States,

Fernando purchased for himself and his wife, Lourdes, two (2)
round trip airline tickets from San Diego, California to Newark,
New Jersey on board Continental Airlines. Fernando purchased
the tickets at US$400.00 each from a travel agency called
Holiday Travel and was attended to by a certain Margaret
Mager (Mager). According to Spouses Viloria, Fernando agreed to
buy the said tickets after Mager informed them that there were
no available seats at Amtrak, an intercity passenger train service
provider in the United States.Subsequently, Fernando requested
Mager to reschedule their flight to Newark to an earlier date or
August 6, 1997. Mager informed him that flights to Newark via
Continental Airlines were already fully booked and offered the
alternative of a round trip flight via Frontier Air.
As he was having second thoughts on traveling via Frontier
Air, Fernando went to the Greyhound Station where he saw an
Amtrak station nearby. Fernando made inquiries and was told
that there are seats available and he can travel on Amtrak
anytime and any day he pleased. Fernando then purchased two
(2) tickets for Washington, D.C.
From Amtrak, Fernando went to Holiday Travel and
confronted Mager with the Amtrak tickets, telling her that she
had misled them into buying the Continental Airlines tickets by
misrepresenting that Amtrak was already fully booked. Fernando
reiterated his demand for a refund but Mager was firm in her
position that the subject tickets are non-refundable.
Upon returning to the Philippines, Fernando sent a letter to
CAI on February 11, 1998, demanding a refund and alleging that
Mager had deluded them into purchasing the subject tickets.
In a letter dated June 21, 1999, Fernando demanded for the
refund of the subject tickets as he no longer wished to have them
replaced. In addition to the dubious circumstances under which
the subject tickets were issued, Fernando claimed that CAIs act
of charging him with US$1,867.40 for a round trip ticket to Los
Angeles, which other airlines priced at US$856.00, and refusal to

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allow him to use Lourdes ticket, breached its undertaking under

its March 24, 1998 letter.
On September 8, 2000, Spouses Viloria filed a complaint
against CAI, praying that CAI be ordered to refund the money
they used in the purchase of the subject tickets with legal interest
from July 21, 1997 and to payP1,000,000.00 as moral damages,
P500,000.00 as exemplary damages and P250,000.00 as
attorneys fees.
ISSUE:
Primary issue: WON continental airlines inc., (CAI) bound by the
acts of Holiday Travels agents and employees?
Secondary issue: WON a principal-agent relationship exist
between CAI and Holiday Travel?Assuming that an agency
relationship exists between CAI and Holiday Travel?
Held:
(1) A prior determination of the nature of the passengers cause
of action is necessary. If the passengers cause of action against
the airline company is premised on culpa aquiliana or quasidelict for a tort committed by the employee of the airline
companys agent, there must be an independent showing that the
airline company was at fault or negligent or has contributed to
the negligence or tortuous conduct committed by the employee
of its agent. The mere fact that the employee of the airline
companys agent has committed a tort is not sufficient to hold the
airline company liable. There is no vinculum juris between the
airline company and its agents employees and the contractual
relationship between the airline company and its agent does not
operate to create a juridical tie between the airline company and
its agents employees. Article 2180 of the Civil Code does not
make the principal vicariously liable for the tort committed by its
agents employees and the principal-agency relationship per se
does not make the principal a party to such tort; hence, the need
to prove the principals own fault or negligence.
On the other hand, if the passengers cause of action for
damages against the airline company is based on contractual
breach or culpa contractual, it is not necessary that there be
evidence of the airline companys fault or negligence. All that he
has to prove is the existence of the contract and the fact of its
non-performance by the carrier.
It is incumbent upon Spouses Viloria to prove that CAI exercised
control or supervision over Mager by preponderant evidence.
The existence of control or supervision cannot be presumed and
CAI is under no obligation to prove its denial or nugatory
assertion. Therefore, without a modicum of evidence that CAI
exercised control over Holiday Travels employees or that CAI
was equally at fault, no liability can be imposed on CAI for
Magers supposed misrepresentation.
(2) Contrary to the findings of the CA, all the elements of an
agency exist in this case. The first and second elements are
present as CAI does not deny that it concluded an agreement with
Holiday Travel, whereby Holiday Travel would enter into
contracts of carriage with third persons on CAIs behalf. The third
element is also present as it is undisputed that Holiday Travel
merely acted in a representative capacity and it is CAI and not
Holiday Travel who is bound by the contracts of carriage entered
into by Holiday Travel on its behalf. The fourth element is also
present considering that CAI has not made any allegation that
Holiday Travel exceeded the authority that was granted to it. In
fact, CAI consistently maintains the validity of the contracts of
carriage that Holiday Travel executed with Spouses Viloria and
that Mager was not guilty of any fraudulent misrepresentation.

That CAI admits the authority of Holiday Travel to enter into

contracts of carriage on its behalf is easily discernible from its
February 24, 1998 and March 24, 1998 letters, where it impliedly
recognized the validity of the contracts entered into by Holiday
Travel with Spouses Viloria. When Fernando informed CAI that it
was Holiday Travel who issued to them the subject tickets, CAI
did not deny that Holiday Travel is its authorized agent.
This Court cannot therefore allow CAI to take an altogether
different position and deny that Holiday Travel is its agent
without condoning or giving imprimatur to whatever damage or
prejudice that may result from such denial or retraction to
Spouses Viloria, who relied on good faith on CAIs acts in
recognition of Holiday Travels authority. Estoppel is primarily
based on the doctrine of good faith and the avoidance of harm
that will befall an innocent party due to its injurious reliance, the
failure to apply it in this case would result in gross travesty of
justice.20 Estoppel bars CAI from making such denial.
CAIs liability for damages for its refusal to accept
Lourdes ticket for the purchase of Fernandos round trip ticket is
offset by Spouses Vilorias liability for their refusal to pay the
amount, which is not covered by the subject tickets. Moreover,
the contract between them remains, hence, CAI is duty bound to
issue new tickets for a destination chosen by Spouses Viloria
upon their surrender of the subject tickets and Spouses Viloria
are obliged to pay whatever amount is not covered by the value
of the subject tickets.
Another consideration that militates against the
propriety of holding CAI liable for moral damages is the absence
of a showing that the latter acted fraudulently and in bad faith.
Article 2220 of the Civil Code requires evidence of bad faith and
fraud and moral damages are generally not recoverable in culpa
contractual except when bad faith had been proven. The award of
exemplary damages is likewise not warranted. Apart from the
requirement that the defendant acted in a wanton, oppressive
and malevolent manner, the claimant must prove his entitlement
to moral damages.
BAKA ITANONG NI MAM:
Out of the above given principles, sprung the creation
and acceptance of the relationship of agency whereby one party,
called the principal (mandante), authorizes another, called the
agent (mandatario), to act for and in his behalf in transactions
with third persons. The essential elements of agency are: (1)
there is consent, express or implied of the parties to establish the
relationship; (2) the object is the execution of a juridical act in
relation to a third person; (3) the agent acts as a representative
and not for himself, and (4) the agent acts within the scope of his
authority.
Agency is basically personal, representative, and derivative in
nature. The authority of the agent to act emanates from the
powers granted to him by his principal; his act is the act of the
principal if done within the scope of the authority.
Considering that the fundamental hallmarks of an agency are
present, this Court finds it rather peculiar that the CA had
branded the contractual relationship between CAI and Holiday
Travel as one of sale. The distinctions between a sale and an
agency are not difficult to discern and this Court, as early as
1970, had already formulated the guidelines that would aid in
differentiating the two (2) contracts. In Commissioner of Internal
Revenue v. Constantino,21 this Court extrapolated that the
primordial differentiating consideration between the two (2)
contracts is the transfer of ownership or title over the property
subject of the contract. In an agency, the principal retains
ownership and control over the property and the agent merely

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acts on the principals behalf and under his instructions in

furtherance of the objectives for which the agency was
established. On the other hand, the contract is clearly a sale if the
parties intended that the delivery of the property will effect a
relinquishment of title, control and ownership in such a way that
the recipient may do with the property as he pleases.
NEGLIGENCE
KINDS OF NEGLIGENCE
1.
2.
3.

Culpa Contractual
Culpa Aquiliana
Culpa Criminal

Contractual
Negligence
is
merely incidental
incident to the
performance of an
obligation already
existing because of
the contract;
There
is
preexisitng obligation
(a contract, either
express or implied)
Proof
neededpreponderance of
evidence
As to defense
good father of
family defense
WHY?
Rule re
Respondeat
Superior/Command
Responsibility
/
Master and Servant
Rule
Presumption:

Aquiliana
N = is direct,
substantive,
independent

Criminal
N=
direct,
substantive,
independent of a
contract

No
pre-exisiting
obligation (except
the duty to be
careful in all human
actuations)
Preponderance of
evidence

No
pre-exisiting
obligation (except
the duty never to
harm others)

good father of
family = defense,
insofar
as
employers
or
guardians
are
concerned

Vicitm has to prove

negligence

Proof
of
guilt
beyond reasonable
doubt
good father of
family defense
Employees guilt =
Employers
civil
guilt, if the former
is insolvbent

Accused presumed
as innocent until
contrary is proved.

TESTS OF NEGLIGENCE
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 the 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. (1104a)
TEST: Did the defendant in doing the alleged negligent act use
that reasonable care and caution which an ordinary prudent
person would have used in the same situation? If not, he is guilty
of negligence.

Taylor vs Manila Electric, Railroad and light co.

GR L-4977 March 22, 1910
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. Its power plant is situated at the eastern end of a
small island in the Pasig River within the city of Manila, known as
the Isla del Provisor. The power plant may be reached by boat or
by crossing a footbridge, impassable for vehicles, at the westerly
end of the island.
The plaintiff, David Taylor, was at the time when he received
the injuries complained of, 15 years of age, the son of a
mechanical engineer, more mature than the average boy of his
age, and having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named
Manuel Claparols, about 12 years of age, crossed the footbridge
to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a
cylinder for a miniature engine. Finding on inquiry that Mr.
Murphy was not in his quarters, the boys, impelled apparently by
youthful curiosity and perhaps by the unusual interest which
both seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was made on
a Sunday afternoon, and it does not appear that they saw or
spoke to anyone after leaving the power house where they had
asked for Mr. Murphy.
After watching the operation of the travelling crane used in
handling the defendant's coal, they walked across the open space
in the neighborhood of the place where the company dumped in
the cinders and ashes from its furnaces. Here they found some
twenty or thirty brass fulminating caps scattered on the ground.
These caps are approximately of the size and appearance of small
pistol cartridges and each has attached to it two long thin wires
by means of which it may be discharged by the use of electricity.
They are intended for use in the explosion of blasting charges of
dynamite, and have in themselves a considerable explosive
power. After some discussion as to the ownership of the caps, and
their right to take them, the boys picked up all they could find,
hung them on stick, of which each took end, and carried them
home. After crossing the footbridge, they met a little girl named
Jessie Adrian, less than 9 years old, and all three went to the
home of the boy Manuel. The boys then made a series of
experiments with the caps. They trust the ends of the wires into
an electric light socket and obtained no result. They next tried to
break the cap with a stone and failed. Manuel looked for a
hammer, but could not find one. Then they opened one of the
caps with a knife, and finding that it was filled with a yellowish
substance they got matches, and David held the cap while Manuel
applied a lighted match to the contents. An explosion followed,
causing more or less serious injuries to all three. Jessie, who
when the boys proposed putting a match to the contents of the
cap, became frightened and started to run away, received a slight
cut in the neck. Manuel had his hand burned and wounded, and
David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to
the necessitate its removal by the surgeons who were called in to
care for his wounds.
The evidence does definitely and conclusively disclose how
the caps came to be on the defendant's premises, nor how long
they had been there when the boys found them. It appears,
however, that some months before the accident, during the
construction of the defendant's plant, detonating caps of the
same size and kind as those found by the boys were used in

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sinking a well at the power plant near the place where the caps
were found; and it also appears that at or about the time when
these caps were found, similarly caps were in use in the
construction of an extension of defendant's street car line to Fort
William McKinley. The caps when found appeared to the boys
who picked them up to have been lying for a considerable time,
and from the place where they were found would seem to have
been discarded as detective or worthless and fit only to be
thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant
company to prohibit or prevent visitors from entering and
walking about its premises unattended, when they felt disposed
so to do. As admitted in defendant counsel's brief, "it is
undoubtedly true that children in their play sometimes crossed
the foot bridge to the islands;" and, we may add, roamed about at
will on the uninclosed premises of the defendant, in the
neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children
from visiting the defendant company's premises, although it must
be assumed that the company or its employees were aware of the
fact that they not infrequently did so.

Two years before the accident, plaintiff spent four

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

Issue: WON the company is liable for damages to the plaintiff

because of its negligence for allowing the children to be
exposed to harmful substances?
Held: No.
Ratio:
Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in
common use by the average citizen, and under all the
circumstances, and in the absence of all evidence to the
contrary, we think that the discovery of twenty or thirty of
these caps at the place where they were found by the
plaintiff on defendant's premises fairly justifies the inference
that the defendant company was either the owner of the
caps in question or had the caps under its possession and
control. We think also that the evidence tends to disclose
that these caps or detonators were willfully and knowingly
thrown by the company or its employees at the spot where
they were found, with the expectation that they would be
buried out of the sight by the ashes which it was engaged in
dumping in that neighborhood, they being old and perhaps
defective; and, however this may be, we are satisfied that the
evidence is sufficient to sustain a finding that the company
or some of its employees either willfully or through an
oversight left them exposed at a point on its premises which
the general public, including children at play, where not
prohibited from visiting, and over which the company knew
or ought to have known that young boys were likely to roam
about in pastime or in play.
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

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to his maturity and 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.
Jarco Marketing Corporation vs CA (Tests of negligence)
GR 129792 December 21, 1999
Facts:
Petitioner Jarco Marketing Corporation is the owner of
Syvels Department Store, Makati City. Petitioners Leonardo
Kong, Jose Tiope and Elisa Panelo are the stores branch manager,
operations manager, and supervisor, respectively.
Private
respondents are spouses and the parents of Zhieneth Aguilar
(Zhieneth).
In the afternoon of 9 May 1983, Criselda and Zhieneth
were at the 2nd floor of Syvels Department Store, Makati City.
Criselda was signing her credit card slip at the payment and
verification counter when she felt a sudden gust of wind and
heard a loud thud. She looked behind her. She then saw Zhieneth
on the floor crushed by bulk of the stores gift-wrapping
counter/structure. Although shocked, Criselda was quick to ask
the assistance of the people around in lifting the counter and
retrieving Zhieneth from the floor.
Zhieneth was rushed to the hospital. She lived through
the operation but lost her ability to speak. She then died two
weeks later due to the injuries she sustained.
Respondents demanded the reimbursement of
hospitalization, medical bills and wake and funeral expenses they
incurred from the petitioners. The petitioners refused to pay.
Thus, respondents filed a civil case to recover P157522.86 as
actual damages, P300,000.00 as moral damages and P20,000.00
in attorneys fees.
In their defense, petitioners claimed that Criselda was
negligent for allowing her daughter to freely roam around the
Department Store. They also claimed that Zhieneth was guilty of
contributory negligence by climbing onto the counter which later
fell on her causing her untimely death.

Respondents on the other hand claim that Criselda was not

guilty of negligence as it was natural for her to leave Criselda
when she was signing her credit card slip. They argue that
Zhieneth is not presumed to be guilty of contributory negligence
as she was only 6 years old at that time and that her dying
declaration as testified to by the doctor was that the counter just
fell on her without her climbing onto it. Respondents also argue
that the structure should have been nailed to the floor to prevent
incidents like this.
As to the claim that the counter should have been nailed,
they claim that it was unnecessary as it had been in existence for
many years without incident. Further, petitioners claim that the
criminal case for simple negligence filed against them has been
dismissed and that a verdict of acquittal issued in their favour.
Trial court dismissed the complaint but the Court of Appeals
reversed.
Issue: WON Jarco Marketing is liable for the death of Zhieneth?
Held: Yes.
Ratio:
Note:
What is the doctrine of attractive nuisance?
One who maintains on his estate or premises an attractive
nuisance without exercising due case 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. (Jarco Marketing
Corp. v. CA, 117 SCAD 818, 321 SCRA 375 (1991)
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. It is a fortuitous
circumstance, event or happening; an event happening without
any human agency, or if happening wholly or partly through
human agency, an event which under the circumstances is
unusual or unexpected by the person to whom it happens.
While 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. Negligence is 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. The test of is: 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.
Zhieneths dying statement before being rushed to into
the operating room that she did not do anything but merely
approached the counter forms part of the res gestae in
accordance with Section 42 of Rule 130 of the Rules of Court. It is
axiomatic that matters relating to declarations of pain or
suffering and statements made to a physician are generally
considered declarations and admissions.
Further, the negligence of the petitioners was proven by
the testimony of their employees who testified that the counter
was heavy, shaky and could collapse at any time. It was verified
that the counter was not nailed which further aggravated the
counters instability. Worse, such condition was brought to the
attention of the store supervisor but no action was taken to
address it. Verily, such shows a blatant failure to exercise the
diligence of a good father of a family.
Both Criselda and Zhieneth are not guilty of
contributory negligence. Zhieneth, a 6 year old enjoys the
presumption that she is incapable of committing contributory
negligence. Petitioners failed to rebut such presumption. Further,

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Criselda was not guilty of contributory negligence as it was only

natural for her to let go of Zhieneth to sign her credit card slip.
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 his book, 28 former Judge Cezar S. Sangco
stated:
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. Since negligence may be a felony and a quasidelict and required discernment as a condition of liability,
either criminal or civil, a child under nine years of age is, by
analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of discernment
or incapacity for negligence in the case of a child over nine
but under fifteen years of age is a rebuttable one, under our
law. The rule, therefore, is that a child under nine years of
age must be conclusively presumed incapable of
contributory negligence as a matter of law. [Emphasis
supplied]
Even if we attribute contributory negligence to
ZHIENETH and assume that she climbed over the counter, no
injury should have occurred if we accept petitioners' theory
that the counter was stable and sturdy. For if that was the
truth, a frail six-year old could not have caused the counter
to collapse. The physical analysis of the counter by both the
trial court and Court of Appeals and a scrutiny of the
evidence 29 on record reveal otherwise, i.e., it was not
durable after all. Shaped like an inverted "L," the counter
was heavy, huge, and its top laden with formica. It protruded
towards the customer waiting area and its base was not
secured. 30
CRISELDA too, should be absolved from any
contributory negligence. Initially, ZHIENETH held on to
CRISELDA's waist, later to the latter's hand. 31 CRISELDA
momentarily released the child's hand from her clutch when
she signed her credit card slip. At this precise moment, it
was reasonable and usual for CRISELDA to let go of her child.
Further, at the time ZHIENETH was pinned down by the
counter, she was just a foot away from her mother; and the
gift-wrapping counter was just four meters away from
CRISELDA. 32 The time and distance were both significant.
ZHIENETH was near her mother and did not loiter as
petitioners would want to impress upon us. She even
admitted to the doctor who treated her at the hospital that
she did not do anything; the counter just fell on her.

DOCTRINE OF LAST CLEAR CHANCE

REQS:
(1) Negligence of plaintiff is concurrent with negligence of
defendant;
(2) Party charged is required to act instantaneously;
(3) Injury cannot be avoided despite the application at all
times of all the means to avoid the injury (after the peril
is discovered), at least in all instances where the
previous negligence of the party charged CANNOT be
said to have contributed to the injury at all.

WHEN APPLICABLE:
PICART vs SMITH
(Driver saw a kutsero not in his right lane) Although the horserider was originally at fault, it was the driver who had the last
clear chance to avoid the accident, by merely swerving while at
some distance away.
WHEN NOT APPLICABLE:
SPS ONG vs METROPOLITAN WATER DISTRICT
FACTS:
Plaintiff spouses seek to recover from defendant, a
government-owned corporation, the sum of P50,000 as damages,
P5,000 as funeral expenses, and P11,000 as attorneys' fees, for
the death of their son Dominador Ong in one of the swimming
pools operated by defendant.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school and his brothers
Ruben and Eusebio, went to defendant's swimming pools.
They went immediately to one of the small pools were the
water is shallow. When Domingo went to the adjoining building
to drink a bottle of Coke, his brothers Ruben and Eusebio went to
the bigger pool. Between 4:40-4:45 pm, Dominador Ong got
drowned in the big pool.
It must be noted that it was unknown how Dominador got
into the big pool. ( Even his brothers)There were measures taken
by the employees of Manila Water District to rescue Dominador:
The lifeguard Manuel Abano retrieved his body and applied
manual artificial respiration. The male nurse also came to render
assistance. They also injected camphorated oil and called Dr.
Ayuyao. However, upon arrival of Dr. Ayuyao, the boy was
already dead.
ISSUE: WoN the death of Dominador Ong can be attributed
to the negligence of the defendant/its employees
HELD: NO
RULING:
Petitioners contentions:
(1) That at the time Dominador was drowning, there was no
available lifeguard so as the help to save him came late.
And that when the brothers were shouting for help,
lifeguard Manuel Albano did not immediately respond to
the alarm/shout and that he was reading magazine and
only upon third call did he render retrieval.
This was belied by the written statements of the brothers
Ong emphasizing that after the lifeguards heard their shout
for help, they immediately dived into the pool to rescue
Dominador. Moreover, 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. Thus, it has been shown that the swimming pools

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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 clinic provided with oxygen
resuscitator. And there are security guards who are available
always in case of emergency.
(2) That even it be assumed that the deceased is partly to be
blamed, the Manila Water District may still be held liable
under the doctrine of last clear chance
doctrine of last clear chance: that the negligence of
claimant does not preclude the 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 A person who has last clear chance or opportunity of
avoiding an accident notwithstanding the negligent acts of
his opponent or the negligence of third person which is
imputed to his opponent, is considered in law solely
responsible for the consequences of the accident.
It goes without saying that the plaintiff himself was not free
from fault, for he was guilty of antecedent negligence in
planting himself in 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 a 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.
(Picart vs. Smith, 37 Phil., 809)
Doctrine not applicable. 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 Abno 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..

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. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2,
P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956) N.B: The court ,
following the observation of the trial court, found sufficient
evidence that Dominador might have dived where the water
is only 5.5ft deep and thus he might have hit/bumped his
head.
CIVIL AERNOAUTICS ADMINISTRATION vs CA
FACTS: Ernest Simke is a naturalized Filipino citizen and the
Honorary Consul General of Israel in the Philippines. One
afternoon, he, with several other persons, went to the Manila
International Airport to meet his future son-in-law. He and his
group proceeded to the viewing deck or terrace of the airport.
While walking on the terrace, Simke slipped over an elevation
about four (4) inches high at the far end of the terrace. He fell on
his back and broke his thigh bone. The next day, he was operated.
Simke then filed an action for damages based on quasi-delict
against petitioner Civil Aeronautics Administration (CAA for
brevity) CFI rendered in Simkes favor prompting petitioner to
appeal to the Court of Appeals. The latter affirmed the
trial court's decision
ISSUE: WoN CAA failed to exercise due diligence in avoiding the
accident
HELD: YES
Petitioners contention
(1) Invoked the rule re State Immunity:
UNTENABLE. it can be seen that the CAA is tasked with private
or non-governmental functions which operate to remove it from
the purview of the rule on State immunity from suit. For the
correct rule as set forth in the Tedoro case states:
xxx xxx xxx Not all government entities, whether corporate or
non-corporate, are immune from suits. Immunity functions suits is
determined by the character of the objects for which the entity was
organized. The rule is thus stated in Corpus Juris:
Suits against State agencies with relation to matters in which
they have assumed to act in private or non-governmental
capacity, and various suits against certain corporations created
by the state for public purposes, but to engage in matters
partaking more of the nature of ordinary business rather than
functions of a governmental or political character, are not
regarded as suits against the state. The latter is true, although the
state may own stock or property of such a corporation for by
engaging in business operations through a corporation, the state
divests itself so far of its sovereign character, and by implication
consents to suits against the corporation. (59 C.J., 313) [National
Airport Corporation v. Teodoro, supra, pp. 206-207; Emphasis
supplied.]

The last clear chance doctrine can never apply where the
party charged is required to act instantaneously, and if the

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(2) That there was no negligence since the elevation "had a

legitimate purpose for being on the terrace and was never intended
to trip down people and injure them
The question now is Won the construction of the elevation was
done in negligent manner
YES. CAA failed to exercise due diligence in the maintenance of
the viewing deck. When the trial court wnt for ocular inspection:
they found that the elevation where the plaintiff slipped was the
proximate cause of plaintiffs injury, it was dangerous and
defective condition of the open terrace which has remained
unrepaired through the years. It has observed the lack of
maintenance and upkeep of the MIA terrace, typical of many
government buildings and offices. Aside from the litter allowed to
accumulate in the terrace, pot holes cause by missing tiles
remained unrepaired and unattented. The several elevations
shown in the exhibits presented were verified by this Court
during the ocular inspection it undertook. Among these
elevations is the one (Exh. A) where plaintiff slipped. This Court
also observed the other hazard, the slanting or sliding step (Exh.
B) as one passes the entrance door leading to the terrace
The legal foundation of CAA's liability for quasi-delict can be
found in Article 2176 of the Civil Code which provides that
"(w)hoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done...
As the CAA knew of the existence of the dangerous elevation
which it claims though, was made precisely in accordance with
the plans and specifications of the building for proper drainage of
the open terrace [, its failure to have it repaired or altered in
order to eliminate the existing hazard constitutes such negligence
as to warrant a finding of liability based on quasi-delict upon
CAA.
(3) That respondent Simke was guilty for contributory negligence.
UNTENABLE. Negligence under Article 2179 of the Civil Code
contemplates a negligent act or omission on the part of the
plaintiff, which although not the proximate cause of his
injury, contributed to his own damage, the proximate cause of the
plaintiffs own injury being the defendant's lack of due care. In the
instant case, no contributory negligence can be imputed to the
private respondent, considering the following test formulated in
the early case of Picart v. Smith, 37 Phil. 809 (1918):
TEST TO DETRMINE NEGLIGENCE : Did the defendant in doing
the alleged negligent act use that reasonable care and caution
which an ordinarily prudent man would have used in the same
situation? If not, then he is guilty of negligence. The existence of
the 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.
Applying the test, did the defendant failed to exercise reasonable
care? YES. Simke, ( the victim) could not have reasonably
foreseen the harm that would befall him, considering the
attendant factual circumstances. Even if he had been looking
where he was going, the step in question could not easily be
noticed because of its construction. As the trial court found:

This sketch reveals two pavements adjoining each other, one

being elevated by four and one-fourth inches than the other.
From the architectural standpoint the higher, pavement is a step.
However, unlike a step commonly seen around, the edge of the
elevated pavement slanted outward as one walks to one interior
of the terrace. The length of the inclination between the edges of
the two pavements is three inches. Obviously, plaintiff had
stepped on the inclination because had his foot landed on the
lower pavement he would not have lost his balance. The same
sketch shows that both pavements including the inclined portion
are tiled in red cement, and as shown by the photograph Exhibit
A, the lines of the tilings are continuous. It would therefore be
difficult for a pedestrian to see the inclination especially where
there are plenty of persons in the terrace as was the situation
when plaintiff fell down. There was no warning sign to direct
one's attention to the change in the elevation of the floorings.
Art. 2177 Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or omission of the
defendant.
Art. 2178. The provisions of Articles 1172 to 1174 are also
applicable to a quasi-delict.
Art. 1172 Responsibility arising from negligence in the
performance of every kind of obligation is also demandable,
but such liability may be regulated by the courts, according
to the circumstances.
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 the 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. (1104a)
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.
Art. 2179. When the plaintiff's own negligence was the immediate
and proximate cause of his injury, he cannot recover damages. But
if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of due
care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded. (n)
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.

In connection with the incident testified to, a sketch, Exhibit O,

shows a section of the floorings oil which plaintiff had tripped,

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The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live
in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live in
their company.

If owner was in the backseat liable; If was not not

liable

Art. 2185. 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. (n)

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.

Art. 2186. Every owner of a motor vehicle shall file with the proper
government office a bond executed by a government-controlled
corporation or office, to answer for damages to third persons. The
amount of the bond and other terms shall be fixed by the competent
public official. (n)

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.

Art. 2187. Manufacturers and processors of foodstuffs, drinks, toilet

articles and similar goods shall be liable for death or injuries
caused by any noxious or harmful substances used, although no
contractual relation exists between them and the consumers. (n)

The State is responsible in like manner when it acts through a

special agent; but not when the damage has been caused by the
official to whom the task done properly pertains, in which case
what is provided in Article 2176 shall be applicable.

Art. 2188. 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)

Lastly, teachers or heads of establishments of arts and trades

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

Deals w/ the liability for the acts and omissions of

another;
REASON for liability: negligence in supervision;
Negligence is PRESUMED;

Art. 2181. Whoever pays for the damage caused by his dependents
or employees may recover from the latter what he has paid or
delivered in satisfaction of the claim. (1904)
Art. 2182. If the minor or insane person causing damage has no
parents or guardian, the minor or insane person shall be
answerable with his own property in an action against him where a
guardian ad litem shall be appointed. (n)
Art. 2183. The possessor of an animal or whoever may make use of
the same is responsible for the damage which it may cause,
although it may escape or be lost. This responsibility shall cease
only in case the damage should come from force majeure or from
the fault of the person who has suffered damage. (1905)
Art. 2184. 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 or 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. (n)

Art. 2189. Provinces, cities and municipalities shall be liable for

damages for the death of, or injuries suffered by, any person by
reason of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or
supervision. (n)
Art. 2190. The proprietor of a building or structure is responsible
for the damages resulting from its total or partial collapse, if it
should be due to the lack of necessary repairs. (1907)
Art. 2191. Proprietors shall also be responsible for damages
caused:
(1) By the explosion of machinery which has not been taken care of
with due diligence, and the inflammation of explosive substances
which have not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to persons or
property;
(3) By the falling of trees situated at or near highways or lanes, if
not caused by force majeure;
(4) By emanations from tubes, canals, sewers or deposits of
infectious matter, constructed without precautions suitable to the
place.
- REMEDY: The proprietor may file INJUNCTION since the
damage may be irreparable
Art. 2192. If damage referred to in the two preceding articles
should be the result of any defect in the construction mentioned in
Article 1723, the third person suffering damages may proceed only
against the engineer or architect or contractor in accordance with
said article, within the period therein fixed. (1909)

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10

Art. 2193. The head of a family that lives in a building or a part

thereof, is responsible for damages caused by things thrown or
falling from the same. (1910)
Art. 2194. The responsibility of two or more persons who are liable
for
quasi-delict
is
solidary.
(n)

STANDARD OF CONDUCT- Good father of a family

A. Children
RA 9344 Juvenile Justice and Welfare Act
DEL ROSARIO VS MANILA ELECTRIC CO. (1932)
FACTS: On August 4, 1930 2 pm: a trouble developed in a
wire used by Manila Electric Company on Dimas-Alang
Street for the purpose of conducting electricity used in
lighting the City of Manila and its suburbs. Jose Noguera,
who had charge of a tienda nearby, first noticed that the wire
was burning and its connections smoking:
- the wire parted and one of the ends of the wire fell to
the ground among some shrubbery close to the way.
- Noguera went to the nearby garage and asked Jose Soco,
the timekeeper, to telephone the Malabon station of the
Manila Electric Company
Around 2.25 p.m.: Soco transmitted the message and the
station told him that they would send an inspector. About 4
p.m.: neighborhood school was dismissed and the children
went home. Among these is Alberto Del Rosario, the child
who had an accident w/c results to his death from shock of
wire used by defendant Manila Electric Company.
- Note that when the children noticed the wire, they
made a motion whether to touch it or not. Apparently,
Alberto del Rosario said that "I have for some time been
in the habit of touching wires" and so feeling
challenged put out his index finger and touch the wire
resulting to the said accident
- Hence, his father Julian Del Rosario instituted an action
for damages agains MANILA ELECTRIC CO.
ISSUE: WoN Manila Electric Company should be held liable
for negligence that caused the death of Alberto
HELD: YES. NOTE THAT the notice of the said wire trouble
was received at 2:25 pm, there should have been measures
taken. More than 1 and a half hour passed before anyone
from the Company appeared on the scene which was too late
since the accident already took place.
The engineer of the company said that it was customary
for the company to make a special inspection of these
wires at least once in six months, and that all of the
company's inspectors were required in their daily
rounds to keep a lookout for trouble of this kind.
Presumption of negligence on the part of the Manila
Electric Company from the breakage of this wire has not
been overcome, and the SC held that they are
responsible for the accident
RE CONTRIBUTORY NEGLIGENCE: The court held that it
is doubtful whether contributory negligence can
properly be imputed to the deceased, owing to his
immature years and the natural curiosity which a child
would feel to do something out of the ordinary, and the
mere fact that the deceased ignored the caution of a
companion of the age of 8 years does notalter the case.
But even supposing that contributory negligence could
in some measure be properly imputed to the deceased,

a proposition upon which the members of the court

do not all agree, yet such negligence would not be
wholly fatal to the right of action in this case, not having
been the determining cause of the accident.
YLARDE VS AQUINO (1988)
FACTS:
Private respondent Mariano Soriano was the principal
of
the
Gabaldon
Primary
School
in
Pangasinan. Defendant Edgardo Aquino was a teacher
therein.
During that time, the school had several concrete blocks
which were remnants of the old school shop destroyed
in World War II.
One teacher of the said school, Banez started clearing
out these blocks.
Defendant Aquino upon seeing him decided to help
clear the area so he gathered 18 of his male students
and ordered them to dig beside a one ton concrete block
in making a hole where the stone can be buried.
It was left unfinished so the following day he called 4 of
the 18 students including the Novelito Ylarde, (the
victim in this case) to complete the excavation.
However, Defendant left the children to level the loose
soil while he went to see Banez for the key to the school
workroom where he can get some rope. He alleged that
before leaving, he told the children not to touch the
stone.
After he left, the children playfully jumped into the pit
when
suddenly
the
concrete
block
slide
down. Unfortunately, Novelito Ylarde was pinned to the
wall causing serious physical injuries which as a
consequence led to his death, 3 days thereafter. Hence,
The parents of the victim, herein petitioners, filed a suit
for damages against both Aquino and Soriano.
The lower court dismissed the case on the ff grounds
(1) that the digging done was in line by their course called
Work Education
(2) that Auqino exercise due diligence
(3) That the demise of Ylarde was due to his own reckless
imprudence
ISSUE: WoN both Soriano and Aquino can be held liable for
damages.
HELD:
As to liability of principal Soriano, NO. As held in Amadora vs
CA, it is only the teacher and not the head of an academic
school who should be answerable for torts committed by
their students. Where the school is academic rather than
technical or vocational in nature, responsibility for the tort
committed by the student will attach to the teacher in charge
of such student, this is the general rule. However, in case of
establishments of arts and trades, it is the head thereof, and
only he, who shall be held liable as an exception to the
general rule. In other words, teachers in general shall be
liable for the acts of their students except where the school
is technical in nature, in which case it is the head thereof
who shall be answerable. Hence, Soriano as principal cannot
be held liable for the reason that the school he heads is an
academic school and he did not give any instruction
regarding the digging.

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As to liability of teacher Aqiono, YES. The negligent act og

leavoin the pupils in the dangerous site was a direct causal
conncetion to the death of Ylarde A teacher who stands in
loco parentis to his tudents should make sure that the
children are protected from all harm. The excavation
instructed clearly exposed the students to risk and should
not be placed under the category of Work Education such as
school gardening, planting trees etc. Aquino acted with fault
and gross negligence where instead of availing himself of
adult manual laborers he instead utilized his
students. Furthermore, the warning given is not sufficient to
cast away all serious danger that the concrete block adjacent
to the excavation would present to the children.
His negligence was clear when he:
(1) failed to avail himself of adult manual laborers and
instead utilized the pupils
(2) even after the children were finished diging. The
required them to remain in the pit knowing that theres
a huge peril block there
(3) it was apparent that the said block was at the brink of
falling
(4) that he went to place he wont able to check the safety
of the children
(5) left the children on the excavation site knowing that
theres attractive nuisance
B.

Persons with disability

US VS BONIFACIO (1916)
FACTS: Bonifacio was an engineer and was conducting the heavy
freight train one morningi n Batangas. The train had just
rounded a curve when Bonifacio saw a man (victim herein, Eligio
Castillo) walking along the railroad track. Bonifacio then
immediately blew his whistle twice; unknown to him, Castillo
was a deaf-mute. Noticing that Castillo did not step aside from
the track, Bonifacio tried to slow down the engine, but did not
succeed in stopping in time to avoid Castillo running down the
pedestrian, who, about that time, turned and attempted to cross
the track. Bonifacio was charged in the trial court with homicide
committed with reckless negligence and he was convicted of
homicide committed with simple negligence
ISSUE: WON BONIFACIO IS NEGLIGENT
HELD: NO. Court ruled that theres no way Bonifacio knew that
Castillo was deaf-mute. There is no obligation on an engine
driver to stop, or even to slow down his engine when he sees an
adult pedestrian standing or walking on or near the track, unless
there is something in the appearance or conduct of the person on
foot which would cause a prudent man to anticipate the
possibility that such person could not, or would not avoid the
possibility of danger by stepping aside. Ordinarily, all that may
properly be required of an engine driver under such
circumstances is that he give warningof hisapproach,byblowinghiswhistle
or ringing his bell until he is assured that the attention of the pedestrian
has been attracted to the oncoming train.
An engine driver may fairly assume that all persons walking or
standing on or near the railroad track, except children of tender
years, are aware of the danger to which they are exposed; and
that they will take reasonable precautions to avoid accident, by
looking and listening for the approach of trains, and stepping out
of the way of danger when their attention is directed to an

oncoming train. Any other rule would render it impracticable to

operate railroads so as to secure the expeditious transportation
of passengers and freight which the public interest demands.
Bonifacio was without fault; and that the accident must be
attributed wholly to the reckless negligence of the deaf-mute, in
walking on the track without taking the necessary precautions to
avoid danger from a train approaching him from behind.
RE QUESTION IF BONIFACIO IS VIOLATING REGULATION
NO. The statement of the accused engineer that the indicator or
his engine showed that he was running at 35 miles an hour
before the accident referred to the time immediately preceding
the accident. Even if it were true, as the trial judge inferred from
his evidence, that the accused looked at the indicator several
seconds before the accident, and before the train entered on the
down-grade some 175 yards from the place at which it occurred,
it does not necessarily follow that the speed of travel was
increased thereafter beyond the limit prescribed by regulations.
That would depend to some extent on the steam pressure
maintained on the engine, and perhaps upon other factors not
developed in the record.
Moreover, assuming that the train had gained some small
addition in speed beyond the authorized rate of travel, as a result
of the fact that it was running on down grade for about one
hundred meters before the accident occurred, it affirmatively
appears from the statement of facts set forth above, that, under
all the circumstances, the accident must have taken place
whether the speed had been slightly under rather than slightly
over the limit prescribed by regulation, and that it was due
wholly to the negligent conduct of the deceased.

C.

Intoxication

WRIGHT VS MANILA ELECTRIC ROAD & LIGHT CO. (1914)

FACTS:

The defendant is a corporation engaged in operating an

electric street railway in the city of Manila and its suburbs,
including the municipality of Caloocan.

The plaintiff's residence in Caloocan fronts on the street

along which defendant's tracks run, so that to enter his
premises from the street plaintiff is obliged to cross
defendant's tracks.

On the night mentioned plaintiff drove home in a calesa and

in crossing the tracks to enter his premises the horse
stumbled, leaped forward, and fell, causing the vehicle with
the rails, resulting in a sudden stop, threw plaintiff from the
vehicle and caused the injuries complained of.

HOW Defendant is negligent: the rails were above-ground,

and the ties upon which the rails rested projected from onethird to one-half of their depth out of the ground, thus
making the tops of the rails some 5 or 6 inches or more
above the level of the street.

It is admitted that the defendant was negligent in

maintaining its tracks as described, but it is contended
that the plaintiff was also negligent in that he was
intoxicated to such an extent at the time of the accident that
he was unable to take care of himself properly and that such
intoxication was the primary cause of the accident.

TC held that both parties were negligent, but that the

plaintiff's negligence was not as great as defendant's and
apportioned the damages and awarded plaintiff a judgment
of P1,000.

If the defendant or its employees were negligent by reason of

having left the rails and a part of the ties uncovered in a street

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where there is a large amount of travel, the plaintiff was no

less negligent, he not having abstained from his custom of
taking more wine than he could carry without disturbing his
judgment and his self-control, he knowing that he had to drive
a horse and wagon and to cross railroad tracks which were to
a certain extent dangerous by reason of the rails being
elevated above the level of the street.
ISSUE: whether the negligence of plaintiff contributed t the
'principal occurrence' or 'only to his own injury. OR whether the
negligence of plaintiff contributed t the 'principal occurrence' or
'only to his own injury.

HELD: Plaintiff-victim NOT negligent

RATIO:

Why is it important to determine WON plaintiff is negligent:

If the negligence of the plaintiff was the primary cause of the
accident then, of course, he cannot recover; if his negligence
had nothing to do with the accident but contributed to his
injury, then the court was right in apportioning the damages,
but if there was no negligence on the part of the plaintiff,
then he should be awarded damages adequates to the injury
sustained."
Re WON intoxication amounts to negligence:

A careful reading of the decision of the trial court leads us to

the conclusion that there is nothing in the opinion which
sustains the conclusion of the court that the plaintiff was
negligent with reference to the accident which is the basis of
this action. Mere intoxication establish a want of ordinary
care.

It is but a circumstance to be considered with the other

evidence tending to prove negligence. It is the general rule
that it is immaterial whether a man is drunk or sober if no
want of ordinary care or prudence can be imputed to him,
and no greater degree of care is required than by a sober
one.

If one's conduct is characterized by a proper degree of

care and prudence, it is immaterial whether he is drunk
or sober.

The conclusion that if he had been sober he would not

have been injured is not warranted by the facts as found.
It is impossible to say that a sober man would not have
fallen from the vehicle under the conditions described.

A horse crossing the railroad tracks with not only the rails
but a portion of the ties themselves aboveground, stumbling
by reason of the unsure footing and falling, the vehicle
crashing against the rails with such force as to break a
wheel, this might be sufficient to throw a person from the
vehicle no matter what his condition; and to conclude that,
under such circumstances, a sober man would not have
fallen while a drunken man did, is to draw a conclusion
which enters the realm of speculation and guesswork.
D.

Insanity

US VS BAGGAY
- Defendant appeals the judgment where he was declared exempt
from criminal liability but was obliged to indemnify the heirs if
the murdered woman, Bil-liingan, in the sum of P1,000, to pay the
costs in the case and to be confined in an institution for the
insane until further order of the court.

In 1909, several persons were assembled in the defendant's

house in Ilocos Sur, for the purpose of holding a song service
called "buni"
non-Christian Baggay, without provocation suddenly
attacked the woman Bil-liingan with a bolo, inflicting a
serious wound on her head from which she expired
immediately; and with the same bolo he like wise inflicted
various wounds on the women named Calabayan, Agueng,
Quisamay, Calapini, and on his own mother, named Dioalan.
provincial fiscal filed a complaint in the court of Ilocos Sur
with murder, because of the violent death of the woman Billiingan.
After trial and proof that the defendant was suffering from
mental aberration, the judge rendered the judgment:
defendant was declared exempt from criminal liability but
was obliged to indemnify the heirs if the murdered woman,
Bil-liingan, in the sum of P1,000, to pay the costs in the case
and to be confined in an institution for the insane until
further order of the court.
The Appeal: Defendant annulment of the sale at public
auction of the property attached by the sheriff or his deputy
under order of the court, for making indemnification with
the defendant's property in accordance with said judgment,
as the attachment had been executed upon the property of
the non-Christian woman named Dioalan and of other
persons, and not upon that of the defendant.

ISSUE: whether he, notwithstanding that he was held exempt

from criminal liability, has nevertheless incurred civil liability,
with obligation to indemnify the heirs of the murdered woman
and to pay the costs.
HELD: YES.
RATIO:
Article 17 of the Penal Code:
Every person criminally liable for a crime or
misdemeanor is also civilly liable.
Article 18:
The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and
10 of article 8 does not include exemption from civil liability, which
shall be enforced, subject to the following:
(1) In cases 1, 2, and 3, the persons who are civilly liable for acts
committed by a lunatic or imbecile, or a person under 9 years of
age, or over this age and under 15, who has not acted with the
exercise of judgment, are those who have them under their
authority, legal guardianship or power, unless they prove that
there was no blame or negligence on their part.
(2) Should there be no person having them under his authority,
legal guardian, or power, if such person be insolvent, the said
lunatics, imbeciles, or minors shall answer with their own property,
excepting that part which is exempted for their support in
accordance with the civil law.

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Civil liability accompanies criminal liability, because

every person liable criminally for a crime or
misdemeanor is also liable for reparation of damage and
for indemnification of the harm done,

but there may be civil liability because of acts ordinarily

punishable, although the law has declared their
perpetrators exempt from criminal liability.

Such is the case of a lunatic or insane person who, in spite

of his irresponsibility on account of the deplorable condition
of his deranged mind, is still reasonably and justly liable
with his property for the consequences of his acts, even
though they be performed unwittingly, for the reason that
his fellows ought not to suffer for the disastrous results of
his harmful acts more than is necessary, in spite of his
unfortunate condition.
Re Protection to the insane vis a vis Reward to the one
damaged:

Law and society are under obligation to protect him during

his illness and so when he is declared to be liable with his
property for reparation and indemnification, he is still
entitled to the benefit of what is necessary for his decent
maintenance, but this protection does not exclude liability
for damage caused to those who may have the misfortune to
suffer the consequences of his acts.
WHO IS LIABLE:
1) the persons in the first place liable. are those who have the
insane party under their care or guardianship, unless they
prove that there was no blame or negligence on their part;
2) If without a guardian or some person charged with his care, if
the latter be insolvent, then his own property must meet the
civil liability of indemnifying or repairing the damage done,

and for this reason judges and courts in rendering judgment

in a criminal cause prosecuted against an insane or
demented person, even when they hold the accused exempt
from criminal liability, must fix the civil liability of the
persons charged with watching over and caring for him or
the liability of the demented person himself with his
property for reparation of the damage and indemnification
for the harm done, unless the offended party or the heirs of
the person murdered expressly renounce such reparation or
indemnification.

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 therof. Quest, as general manager, had
full charge of the corporations in all its branches.
WHAT IS TO BE DONE: Quest to install a new carburetor to
change the engine of on the Gwendoline changed from a gasoline
consumer to a crude oil burner and a Zenith carburetor was
chosen as the one most adapted to the purpose. After this
appliance had been installed, the engine was tried with gasoline
as a fuel, supplied from the tank already in use. The result of this
experiment was satisfactory. The next problem was to introduce
into the carburetor the baser fuel, consisting of a low grade of oil
mixed with distillate.
As the boat was coming in from trial run, at about 7:30 p.m. and
when passing near Cavite, the engine stopped, and connection
again had to be made with the gasoline line to get a new start.
After this had been done the mechanic, or engineer, switched to
the tube connecting with the new mixture. A moment later a back
fire occurred in the cylinder chamber. This caused a flame to
shoot back into the carburetor, and instantly the carburetor and
adjacent parts were covered with a mass of flames, which the
members of the crew were unable to subdue. They were
therefore compelled, as the fire spread, to take to a boat, and
their escape was safely effected, but theGwendoline was reduced
to a mere hulk. The salvage from, the wreck, when sold, brought
only the sum of P150. The value of the boat, before the accident
occured, as the court found, was P10,000.
ISSUE: WON Phil Motors may be held negligent
RATIO: YES.
HELD:
HOW IS QUEST/ PHIL MOTORS NEGLIGENT:

STANDARD OF CONDUCT Expert or persons with special skill

CULLION ICE, FISH AND ELCTRIC CO. VS PHIL MOTORS
CORP (1930)
FACTS:

The plaintiff and defendant are domestic corporations;

H.D. Cranston was the representative of the plaintiff in the

City of Manila. At the same time the plaintiff was the
registered owner of the motor schooner Gwendoline, which
was used in the fishing trade in the Philippine Islands.

In 1925, Cranston decided, if practicable, to have the engine

on the Gwendoline changed from a gasoline consumer to a
crude oil burner, expecting thereby to effect economy in the
cost of running the boat.

Philippine Motors Corporation had a conference with C.E.

Quest, manager of PHIL MOTORS, who agreed to do the job,
with the understanding that payment should be made upon
completion of the work.

The Philippine Motors Corporation was at this time engaged

in business as an automobile agency, but, under its charter, it

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.

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The test of liability is not whether the injury was

accidental in a sense, but whether Quest was free from
blame.
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.

Re WON Phil Motors is only a BAILEE (and that, as a

consequence, the burden of proof was on the defendant to
exculpate itself from responsibility by proving that the accident
was not due to the fault of Quest)

H: We are unable to accede to this point of view. Certainly,

Quest was not in charge of the navigation of the boat on this
trial run. His employment contemplated the installation of
new parts in the engine only, and it seems rather strained to
hold that the defendant corporation had thereby become
bailee of the boat. As a rule workmen who make repairs on a
ship in its owner's yard, or a mechanic who repairs a coach
without taking it to his shop, are not bailees, and their rights
and liabilities are determined by the general rules of law,
under their contract.
The true bailee acquires possession and what is usually
spoken of as special property in the chattel bailed. As a
consequence of such possession and special property, the
bailee is given a lien for his compensation.
These ideas seem to be incompatible with the situation now
under consideration.
But though defendant cannot be held liable in the
supposition that the burden of proof had not been sustained
by it in disproving the negligence of its manager, we are
nevertheless of the opinion that the proof shows by a clear
preponderance that the accident to the Gwendoline and
the damages resulting therefrom are chargeable to the
negligence or lack of skill of Quest.

EXPECTED CONDUCT
CUSI VS PHIL NATL RAILWAYS (1979)
FACTS:

In 1963, plaintiffs-appellees 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,
the plaintiffs-appellees 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 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 plaintiffs-appellees out of their
car which was smashed.
For these injuries, she underwent a total of four surgical
opera. 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. As a result of his injuries, he was
unable to properly attend to his various business
undertakings. 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: WON defendant railroad is indeed negligent
HELD: YES
NEGLIGENCE is "the failure to observe for the protection of the
interests of another person that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such
other person suffers injury." 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.
Re HOW IS THERE NEGLIGENCE BY RAILROAD DEFENDANT:

There is 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.
Re Allegation of contributory negligence:
failure of plaintiffs-appellees to stop before proceeding to traverse
the crossing constitutes contributory negligence, thereby
precluding them from recovering indemnity for their injuries and
damages.

BASIS: excepting clause of Section 56(a) of the Motor Vehicle

Law: Provided, however, that the driver of a passenger
automobile or motorcycle may instead of coming to a full
stop, slow down to not more than ten kilometers per hour
whenever it is apparent that no hazard exists.

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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.

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