G.R. No.

L-12219

March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as
damages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of First
Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan
Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony
over said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an
automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a
horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken the
bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the
novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right
side of the bridge instead of going to the left. He says that the reason he did this was that he thought he did not have
sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of
4.80 meters. As the automobile approached, the defendant guided it toward his left, that being the proper side of the
road for the machine. In so doing the defendant assumed that the horseman would move to the other side. The pony
had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down,
continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there
being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently
to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile
passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its
head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb
was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced in the case we
believe that when the accident occurred the free space where the pony stood between the automobile and the railing of
the bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff
received contusions which caused temporary unconsciousness and required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the manner above
described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the
opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the horse and the
rider would pass over to the proper side; but as he moved toward the center of the bridge it was demonstrated to his
eyes that this would not be done; and he must in a moment have perceived that it was too late for the horse to cross
with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the
automobile was yet some distance away; and from this moment it was not longer within the power of the plaintiff to
escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons

on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision.
Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived
into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there
was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and
jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger
he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use that person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course be always
determined in the light of human experience and in view of the facts involved in the particular case. Abstract
speculations cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct
by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient
of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued?
If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this:
Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect
harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A
prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he
was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable
consequence of that course. Under these circumstances the law imposed on the defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in
planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in
such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that
the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference
to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in
this connection. This Court there held that while contributory negligence on the part of the person injured did not
constitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been
assessed wholly against the other party. The defendant company had there employed the plaintiff, as a laborer, to assist
in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails were
conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edge the track gave way
by reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that the
accident was due to the effects of the typhoon which had dislodged one of the supports of the track. The court found

that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was,
at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of being in
front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having
failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on account of the
contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an
omission only. The liability of the company arose from its responsibility for the dangerous condition of its track. In a
case like the one now before us, where the defendant was actually present and operating the automobile which caused
the damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in order to
apportion the damage according to the degree of their relative fault. It is enough to say that the negligence of the
defendant was in this case the immediate and determining cause of the accident and that the antecedent negligence of
the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the
effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this
connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings to be
instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves).
At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense
mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a point upon
which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal
proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep.,
564.)
From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered
that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum
here awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage
occasioned to articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages
claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.

G.R. No. L-39587

March 24, 1934

ALEKO E. LILIUS, ET AL., plaintiffs-appellants,

vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Harvey and O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
VILLA-REAL, J.:
This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the plaintiffs
Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the dispositive part of
which reads as follows:

Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the purposes
above stated, the total amount of P30,865, with the costs of the suit. And although the suit brought by the
plaintiffs has the nature of a joint action, it must be understood that of the amount adjudicated to the said
plaintiffs in this judgment, the sum of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum
of P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital,
Province of Laguna, and the balance to the plaintiff Aleko E. Lilius.
In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors committed by the trial
court in its said judgment, which will be discussed in the course of this decision.
As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as committed by the
same court a quo in its judgment in question, which will be discussed later.
This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein alleged, that the
Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for material and moral damages
suffered by them through the fault and negligence of the said defendant entity's employees, the sum of P50,000 plus
legal interest thereon from the date of the filing of the complaint, with costs.
The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation thereof and,
by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his wife and coplaintiff,
negligently and recklessly drove his car, and prays that it be absolved from the complaint.
The following facts have been proven at the trial, some without question and the others by a preponderance of
evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and photographer.
At the time of the collision in question, he was a staff correspondent in the Far East of the magazines The American
Weekly of New York and The Sphere of London.
Some of his works have been translated into various languages. He had others in preparation when the accident
occurred. According to him, his writings netted him a monthly income of P1,500. He utilized the linguistic ability of
his wife Sonja Maria Lilius, who translated his articles and books into English, German, and Swedish. Furthermore,
she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4-year old
daughter Brita Marianne Lilius, left Manila in their Studebaker car driven by the said plaintiff Aleko E. Lilius
for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first time that he made said
trip although he had already been to many places, driving his own car, in and outside the Philippines. Where the road
was clear and unobstructed, the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had made
the trip as far as Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with the
conditions of the road at said points and had no knowledge of the existence of a railroad crossing at Dayap. Before
reaching the crossing in question, there was nothing to indicate its existence and inasmuch as there were many houses,
shrubs and trees along the road, it was impossible to see an approaching train. At about seven or eight meters from the
crossing, coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several people, who
seemed to have alighted from the said truck, were walking on the opposite side. He slowed down to about 12 miles an
hour and sounded his horn for the people to get out of the way. With his attention thus occupied, he did not see the
crossing but he heard two short whistles. Immediately afterwards, he saw a huge black mass fling itself upon him,
which turned out to be locomotive No. 713 of the defendant company's train coming eastward from Bay to Dayap
station. The locomotive struck the plaintiff's car right in the center. After dragging the said car a distance of about ten
meters, the locomotive threw it upon a siding. The force of the impact was so great that the plaintiff's wife and
daughter were thrown from the car and were picked up from the ground unconscious and seriously hurt. In spite of the

efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it had gone about seventy meters
from the crossing.
On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where they were
treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a contusion above the left eye
and a lacerated wound on the right leg, in addition to multiple contusions and scratches on various parts of the body.
As a result of the accident, the said plaintiff was highly nervous and very easily irritated, and for several months he
had great difficulty in concentrating his attention on any matter and could not write articles nor short stories for the
newspapers and magazines to which he was a contributor, thus losing for some time his only means of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right leg, below
the knee, and received a large lacerated wound on the forehead. She underwent two surgical operations on the left leg
for the purpose of joining the fractured bones but said operations notwithstanding, the leg in question still continues
deformed. In the opinion of Dr. Waterous, the deformity is permanent in character and as a result the plaintiff will
have some difficulty in walking. The lacerated wound, which she received on her forehead, has left a disfiguring scar.
The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the left side of
the face, in addition to fractures of both legs, above and below the knees. Her condition was serious and, for several
days, she was hovering between life and death. Due to a timely and successful surgical operation, she survived her
wounds. The lacerations received by the child have left deep scars which will permanently disfigure her face, and
because of the fractures of both legs, although now completely cured, she will be forced to walk with some difficulty
and continuous extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there anybody to warn
the public of approaching trains. The flagman or switchman arrived after the collision, coming from the station with a
red flag in one hand and a green one in the other, both of which were wound on their respective sticks. The said
flagman and switchman had many times absented himself from his post at the crossing upon the arrival of a train. The
train left Bay station a little late and therefore traveled at great speed.
Upon examination of the oral as well as of the documentary evidence which the parties presented at the trial in support
of their respective contentions, and after taking into consideration all the circumstances of the case, this court is of the
opinion that the accident was due to negligence on the part of the defendant-appellant company, for not having had on
that occasion any semaphore at the crossing at Dayap, to serve as a warning to passers-by of its existence in order that
they might take the necessary precautions before crossing the railroad; and, on the part of its employees the
flagman and switchman, for not having remained at his post at the crossing in question to warn passers-by of the
approaching train; the stationmaster, for failure to send the said flagman and switchman to his post on time; and the
engineer, for not having taken the necessary precautions to avoid an accident, in view of the absence of said flagman
and switchman, by slackening his speed and continuously ringing the bell and blowing the whistle before arriving at
the crossing. Although it is probable that the defendant-appellant entity employed the diligence of a good father of a
family in selecting its aforesaid employees, however, it did not employ such diligence in supervising their work and
the discharge of their duties because, otherwise, it would have had a semaphore or sign at the crossing and, on
previous occasions as well as on the night in question, the flagman and switchman would have always been at his post
at the crossing upon the arrival of a train. The diligence of a good father of a family, which the law requires in order to
avoid damage, is not confined to the careful and prudent selection of subordinates or employees but includes
inspection of their work and supervision of the discharge of their duties.
However, in order that a victim of an accident may recover indemnity for damages from the person liable therefor, it is
not enough that the latter has been guilty of negligence, but it is also necessary that the said victim has not, through his
own negligence, contributed to the accident, inasmuch as nobody is a guarantor of his neighbor's personal safety and
property, but everybody should look after them, employing the care and diligence that a good father of a family should

apply to his own person, to the members of his family and to his property, in order to avoid any damage. It appears
that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence of his wife and
child suggested to him in order that his pleasure trip might be enjoyable and have a happy ending, driving his car at a
speed which prudence demanded according to the circumstances and conditions of the road, slackening his speed in
the face of an obstacle and blowing his horn upon seeing persons on the road, in order to warn them of his approach
and request them to get out of the way, as he did when he came upon the truck parked on the left hand side of the road
seven or eight meters from the place where the accident occurred, and upon the persons who appeared to have alighted
from the said truck. If he failed to stop, look and listen before going over the crossing, in spite of the fact that he was
driving at 12 miles per hour after having been free from obstacles, it was because, his attention having been occupied
in attempting to go ahead, he did not see the crossing in question, nor anything, nor anybody indicating its existence,
as he knew nothing about it beforehand. The first and only warning, which he received of the impending danger, was
two short blows from the whistle of the locomotive immediately preceding the collision and when the accident had
already become inevitable.
In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad Company
alone is liable for the accident by reason of its own negligence and that of its employees, for not having employed the
diligence of a good father of a family in the supervision of the said employees in the discharge of their duties.
The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for damages
which the defendant company should pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income of P1,500
a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the trial court as indemnity
for damages, is reasonable.
As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the different
items thereof representing doctor's fees, hospital and nursing services, loss of personal effects and torn clothing, have
duly been proven at the trial and the sum in question is not excessive, taking into consideration the circumstances in
which the said expenses have been incurred.
Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius is in the
language of the court, which saw her at the trial "young and beautiful and the big scar, which she has on her
forehead caused by the lacerated wound received by her from the accident, disfigures her face and that the fracture of
her left leg has caused a permanent deformity which renders it very difficult for her to walk", and taking into further
consideration her social standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of
indemnity for patrimonial and moral damages, excessive. In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the
right leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision between the autobus in which he was
riding and the defendant's car, which fractured required medical attendance for a considerable period of time. On the
day of the trial the fracture had not yet completely healed but it might cause him permanent lameness. The trial court
sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000, in spite of the
fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered any facial deformity, nor
did he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys.
1vvphi1.ne+

As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria
Lilius, neither is the same excessive, taking into consideration the fact that the lacerations received by her have left
deep scars that permanently disfigure her face and that the fractures of both her legs permanently render it difficult for
her to walk freely, continuous extreme care being necessary in order to keep her balance in addition to the fact that all
of this unfavorably and to a great extent affect her matrimonial future.

With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E. Lilius
relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of indemnity for
damages consisting in the loss of his income as journalist and author as a result of his illness. This question has
impliedly been decided in the negative when the defendant-appellant entity's petition for the reduction of said
indemnity was denied, declaring it to be reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's services in
his business as journalist and author, which services consisted in going over his writings, translating them into
English, German and Swedish, and acting as his secretary, in addition to the fact that such services formed part of the
work whereby he realized a net monthly income of P1,500, there is no sufficient evidence of the true value of said
services nor to the effect that he needed them during her illness and had to employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-Saxon
common law "consortium" of his wife, that is, "her services, society and conjugal companionship", as a result of
personal injuries which she had received from the accident now under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the provisions of the Civil
Marriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations of the spouses,
contained in articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations
of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with
and protect his wife. The wife must obey and live with her husband and follow him when he changes his
domicile or residence, except when he removes to a foreign country. . . .
Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife's assistance.
This assistance comprises the management of the home and the performance of household duties, including the care
and education of the children and attention to the husband upon whom primarily devolves the duty of supporting the
family of which he is the head. When the wife's mission was circumscribed to the home, it was not difficult to assume,
by virtue of the marriage alone, that she performed all the said tasks and her physical incapacity always redounded to
the husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when women, in their
desire to be more useful to society and to the nation, are demanding greater civil rights and are aspiring to become
man's equal in all the activities of life, commercial and industrial, professional and political, many of them spending
their time outside the home, engaged in their businesses, industry, profession and within a short time, in politics, and
entrusting the care of their home to a housekeeper, and their children, if not to a nursemaid, to public or private
institutions which take charge of young children while their mothers are at work, marriage has ceased to create the
presumption that a woman complies with the duties to her husband and children, which the law imposes upon her, and
he who seeks to collect indemnity for damages resulting from deprivation of her domestic services must prove such
services. In the case under consideration, apart from the services of his wife Sonja Maria Lilius as translator and
secretary, the value of which has not been proven, the plaintiff Aleko E. Lilius has not presented any evidence
showing the existence of domestic services and their nature, rendered by her prior to the accident, in order that it may
serve as a basis in estimating their value.
Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal and voluntary
acts which neither of the spouses may be compelled to render (Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is
necessary for the party claiming indemnity for the loss of such services to prove that the person obliged to render them
had done so before he was injured and that he would be willing to continue rendering them had he not been prevented
from so doing.

In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad company which
has not installed a semaphore at a crossing an does not see to it that its flagman and switchman faithfully complies
with his duty of remaining at the crossing when a train arrives, is guilty of negligence and is civilly liable for damages
suffered by a motorist and his family who cross its line without negligence on their part; (2) that an indemnity of
P10,000 for a permanent deformity on the face and on the left leg, suffered by a young and beautiful society woman,
is not excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year old girl
belonging to a well-to-do family, is not excessive; and (4) that in order that a husband may recover damages for
deprivation of his wife's assistance during her illness from an accident, it is necessary for him to prove the existence of
such assistance and his wife's willingness to continue rendering it had she not been prevented from so doing by her
illness.
The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities adjudicated
to them, from the date of the appealed judgment until this judgment becomes final, in accordance with the provisions
of section 510 of Act No. 190.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the sole
modification that interest of 6 per cent per annum from the date of the appealed judgment until this judgment becomes
final will be added to the indemnities granted, with the costs of both instances against the appellant. So ordered.

G.R. No. L-40570 January 30, 1976

TEODORO C. UMALI, petitioner,
vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First Instance of
Pangasinan and FIDEL H. SAYNES, respondents.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.

ESGUERRA, J.:
Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX, in Civil Case No.
U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali, defendant-appellant", which found the
death by electrocution of Manuel Saynes, a boy of 3 years and 8 months, as "due to the fault or negligence of the
defendant (Umali) as owner and manager of the Alcala Electric Plant", although the liability of defendant is mitigated
by the contributory negligence of the parents of the boy "in not providing for the proper and delegate supervision and
control over their son The dispositive part of the decision reads as follows:
Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the defendant to
pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the death of his son, Manuel
Saynes; the sum of One Thousand Two Hundred Pesos (P1,200.00) for actual expenses for and in
connection with the burial of said deceased child, and the further sum of Three Thousand Pesos
(P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a
total of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is So
Ordered.
Undisputed facts appearing of record are:
On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan, which started
from 2:00 o'clock in the afternoon and lasted up to about midnight of the same day. During the storm,
the banana plants standing on an elevated ground along the barrio road in San Pedro Ili of said
municipality and near the transmission line of the Alcala Electric Plant were blown down and fell on
the electric wire. As a result, the live electric wire was cut, one end of which was left hanging on the
electric post and the other fell to the ground under the fallen banana plants.

On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San Pedro Iii who
was passing by saw the broken electric wire and so he warned the people in the place not to go near
the wire for they might get hurt. He also saw Cipriano Baldomero, a laborer of the Alcala Electric
Plant near the place and notified him right then and there of the broken line and asked him to fix it,
but the latter told the barrio captain that he could not do it but that he was going to look for the
lineman to fix it.
Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy of 3 years
and 8 months old by the name of Manuel P. Saynes, whose house is just on the opposite side of the
road, went to the place where the broken line wire was and got in contact with it. The boy was
electrocuted and he subsequently died. It was only after the electrocution of Manuel Saynes that the
broken wire was fixed at about 10:00 o'clock on the same morning by the lineman of the electric
plant.
Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and manager of the
Alcala Electric Plant because the proximate cause of the boy's death electrocution could not be due to any negligence
on his part, but rather to a fortuitous event-the storm that caused the banana plants to fall and cut the electric linepointing out the absence of negligence on the part of his employee Cipriano Baldomero who tried to have the line
repaired and the presence of negligence of the parents of the child in allowing him to leave his house during that time.
A careful examination of the record convinces Us that a series of negligence on the part of defendants' employees in
the Alcala Electric Plant resulted in the death of the victim by electrocution. First, by the very evidence of the
defendant, there were big and tall banana plants at the place of the incident standing on an elevated ground which
were about 30 feet high and which were higher than the electric post supporting the electric line, and yet the
employees of the defendant who, with ordinary foresight, could have easily seen that even in case of moderate winds
the electric line would be endangered by banana plants being blown down, did not even take the necessary precaution
to eliminate that source of danger to the electric line. Second, even after the employees of the Alcala Electric Plant
were already aware of the possible damage the storm of May 14, 1972, could have caused their electric lines, thus
becoming a possible threat to life and property, they did not cut off from the plant the flow of electricity along the
lines, an act they could have easily done pending inspection of the wires to see if they had been cut. Third, employee
Cipriano Baldomero was negligent on the morning of the incident because even if he was already made aware of the
live cut wire, he did not have the foresight to realize that the same posed a danger to life and property, and that he
should have taken the necessary precaution to prevent anybody from approaching the live wire; instead Baldomero
left the premises because what was foremost in his mind was the repair of the line, obviously forgetting that if left
unattended to it could endanger life and property.
On defendants' argument that the proximate cause of the victim's death could be attributed to the parents' negligence
in allowing a child of tender age to go out of the house alone, We could readily see that because of the aforementioned
series of negligence on the part of defendants' employees resulting in a live wire lying on the premises without any
visible warning of its lethal character, anybody, even a responsible grown up or not necessarily an innocent child,
could have met the same fate that befell the victim. It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the child, which enabled him to leave the house alone
on the morning of the incident and go to a nearby place cut wire was very near the house (where victim was living)
where the fatal fallen wire electrocuted him, might mitigate respondent's liability, but we cannot agree with
petitioner's theory that the parents' negligence constituted the proximate cause of the victim's death because the real
proximate cause was the fallen live wire which posed a threat to life and property on that morning due to the series of
negligence adverted to above committed by defendants' employees and which could have killed any other person who
might by accident get into contact with it. Stated otherwise, even if the child was allowed to leave the house

unattended due to the parents' negligence, he would not have died that morning where it not for the cut live wire he
accidentally touched.
Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this case) was only
contributory, the immediate and proximate cause of the injury being the defendants' lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the damages to be awarded. This law may be availed of by the
petitioner but does not exempt him from liability. Petitioner's liability for injury caused by his employees negligence
is well defined in par. 4, of Article 2180 of the Civil Code, which states:
The owner and manager 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 tile
occasion of their functions.
The negligence of the employee is presumed to be the negligence of the employer because the employer is supposed
to exercise supervision over the work of the employees. This liability of the employer is primary and direct (Standard
Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the proper defense for the employer to raise so
that he may escape liability is to prove that he exercised, the diligence of the good father of the family to prevent
damage not only in the selection of his employees but also in adequately supervising them over their work. This
defense was not adequately proven as found by the trial Court, and We do not find any sufficient reason to deviate
from its finding.
Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in this case, either in
its appreciation of the evidence on questions of facts or on the interpretation and application of laws government
quasi-delicts and liabilities emanating therefrom. The inevitable conclusion is that no error amounting to grave abuse
of discretion was committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.

G.R. No. L-21291

March 28, 1969

PRECIOLITA V. CORLISS, plaintiff-appellant,

vs.
THE MANILA RAILROAD CO., defendant-appellant.
Moises C. Nicomedes for plaintiff-appellant.
The Government Corporate Counsel for defendant-appellee.
FERNANDO, J.:
Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and with reason. The
future, bright with promise, looms ahead. One's powers are still to be tested, but one feels ready for whatever
challenge may come his way. There is that heady atmosphere of self-confidence, at times carried to excess. The
temptation to take risks is there, ever so often, difficult, if not impossible, to resist. There could be then a lessening of
prudence and foresight, qualities usually associated with age. For death seems so remote and contingent an event.
Such is not always the case though, and a slip may be attended with consequences at times unfortunate, even fatal.
Some such thought apparently was in the mind of the lower court when it dismissed the complaint for recovery of
damages filed by plaintiff-appellant, Preciolita V. Corliss whose husband, the late Ralph W. Corliss, was, at the tender
age of twenty-one, the victim of a grim tragedy, when the jeep he was driving collided with a locomotive of
defendant-appellee Manila Railroad Company, close to midnight on the evening of Feb 21, 1957, at the railroad
crossing in Balibago, Angeles, Pampanga, in front of the Clark Air Force Base. In the decision appealed from, the
lower court, after summarizing the evidence, concluded that the deceased "in his eagerness to beat, so to speak, the
oncoming locomotive, took the risk and attempted to reach the other side, but unfortunately he became the victim of
his own miscalculation." 1
The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory proof to that effect,
in its opinion, being lacking. Hence this appeal direct to us, the amount sought in the concept of damages reaching the
sum of P282,065.40. An examination of the evidence of record fails to yield a basis for a reversal of the decision
appealed from. We affirm.
According to the decision appealed from, there is no dispute as to the following: "In December 1956, plaintiff, 19
years of age, married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr. was an air police of the Clark Air Force
Base; that at the time of the accident, he was driving the fatal jeep; that he was then returning in said jeep, together
with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at the Base Hospital the next day, while the
soldier sustained serious physical injuries and burns." 2
Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus: "Ronald J. Ennis, a
witness of the plaintiff, substantially declared in his deposition, ..., that at the time of the accident, he also awaiting
transportation at the entrance of Clark Field, which was about 40 to 50 yards away from the tracks and that while there

he saw the jeep coming towards the Base. He said that said jeep slowed down before reaching the crossing, that it
made a brief stop but that it did not stop dead stop. Elaborating, he declared that while it was slowing down,
Corliss Jr. shifted into first gear and that was what he meant by a brief stop. He also testified that he could see the train
coming from the direction of San Fernando and that he heard a warning but that it was not sufficient enough to avoid
the accident." 3 Also: "Virgilio de la Paz, another witness of the plaintiff, testified that on the night of February 21,
1957, he was at the Balibago checkpoint and saw the train coming from Angeles and a jeep going towards the
direction of Clark Field. He stated that he heard the whistle of the locomotive and saw the collision. The jeep, which
caught fire, was pushed forward. He helped the P.C. soldier. He stated that he saw the jeep running fast and heard the
tooting of the horn. It did not stop at the railroad crossing, according to him." 4
After which reference was made to the testimony of the main witness for defendant-appellee, Teodorico Capili, "who
was at the engine at the time of the mishap," and who "testified that before the locomotive, which had been previously
inspected and found to be in good condition approached, the crossing, that is, about 300 meters away, he blew the
siren and repeated it in compliance with the regulations until he saw the jeep suddenly spurt and that although the
locomotive was running between 20 and 25 kilometers an hour and although he had applied the brakes, the jeep was
caught in the middle of the tracks." 5
1. The above finding as to the non-existence of negligence attributable to defendant-appellee Manila Railroad
Company comes to us encased in the armor of what admittedly appears to be a careful judicial appraisal and scrutiny
of the evidence of record. It is thus proof against any attack unless sustained and overwhelming. Not that it is
invulnerable, but it is likely to stand firm in the face of even the most formidable barrage.
In the more traditional terminology, the lower court judgment has in its favor the presumption of correctness. It is
entitled to great respect. After all, the lower court had the opportunity of weighing carefully what was testified to and
apparently did not neglect it. There is no affront to justice then if its finding be accorded acceptance subject of course
the contingency of reversal if error or errors, substantial in character, be shown in the conclusion thus arrived at. It is a
fair statement of the governing, principle to say that the appellate function is exhausted when there is found to be a
rational basis for the result reached by the trial court.
As was held in a 1961 decision: "We have already ruled, that when the credibility of witnesses is the one at issue, the
trial court's judgment as to their degree of credence deserves serious consideration by this Court." 6 An earlier
expression of the same view is found in Jai-Alai Corporation v. Ching Kiat: "After going over the record, we find no
reason for rejecting the findings of the court below. The questions raised hinge on credibility and it is well-settled that
in the absence of compelling reasons, its determination is best left to the trial judge why had the advantage of hearing
the parties testify and observing their demeanor on the witness stand." 7
In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any arbitrary or abusive
conduct on the part of the trial judge in the formulation of the ruling. His conclusion on the matter is sufficiently borne
out by the evidence presented. We are denied, therefore, the prerogative to disturb that finding, consonant to the time
honored tradition of the Tribunal to hold trial judges better situated to make conclusions on questions of fact'." 8 On
this ground alone we can rest the affirmance of the judgment appealed from.
lwphi1.et

2. Nor is the result different even if no such presumption were indulged in and the matter examined as if we were
exercising original and not appellate jurisdiction. The sad and deplorable situation in which plaintiff-appellant now
finds herself, to the contrary notwithstanding we find no reason for reversing the judgment of the lower court.
This action is predicated on negligence, the Civil Code making clear that whoever by act or omission causes damage
to another, there being negligence, is under obligation to pay for the damage done. 9 Unless it could be satisfactorily

shown, therefore, that defendant-appellee was guilty of negligence then it could not be held liable. The crucial
question, therefore, is the existence of negligence.
The above Civil Code provision, which is a reiteration of that found in the Civil Code of Spain, formerly applicable
in this jurisdiction, 10 had been interpreted in earlier decisions. Thus, in Smith v. Cadwallader Gibson Lumber
Co., 11Manresa was cited to the following effect "'Among the questions most frequently raised and upon which the
majority of cases have been decided with respect to the application of this liability, are those referring to the
determination of the damage or prejudice, and to the fault or negligence of the person responsible therefor. These are
the two indispensable factors in the obligations under discussion, for without damage or prejudice there can be no
liability, and although this element is present no indemnity can be awarded unless arising from some person's fault or
negligence'."
Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and United States v.
Barias. 13Cooley' formulation was quoted with approval in both the Juanillo and Barias decisions. Thus: "Judge
Cooley in his work on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure to observe for the protection of
the interests of another person that degree of care, precaution and vigilance which the circumstance justly demand
whereby such other person suffers injury." There was likewise a reliance on Ahern v. Oregon Telephone Co. 14 Thus:
"Negligence is want of the care required by the circumstances. It is a relative or comparative, not an absolute term and
its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances
reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want
of ordinary care under the circumstances."
To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the action of plaintiff-appellee
must necessary fail. The facts being what they are, compel the conclusion that the liability sought to be fastened on
defendant-appellee had not arisen.
3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from on the ground that
there was a failure to appreciate the true situation. Thus the first three assigned errors are factual in character. The
third assigned error could be summarily disposed of. It would go against the evidence to maintain the view that the
whistle was not sounded and the brakes not applied at a distance of 300 meters before reaching the crossing.
The first two assigned errors would make much of the failure of the lower court to hold that the crossing bars not
having been put down and there being no guard at the gate-house, there still was a duty on the part of Corliss to stop
his jeep to avoid a collision and that Teodorico Capili, who drove the engine, was not qualified to do so at the time of
the accident. For one cannot just single out circumstance and then confidently assign to it decisive weight and
significance. Considered separately, neither of the two above errors assigned would call for a judgment different in
character. Nor would a combination of acts allegedly impressed with negligence suffice to alter the result. The
quantum of proof required still not been met. The alleged errors fail of their said effect. The case for plaintiffappellant, such as it had not been improved. There is no justification for reversing the judgment of the lower court.
It cannot be stressed too much that the decisive considerations are too variable, too dependent in the lid analysis
upon a common sense estimate of the situation as it presented itself to the parties for us to be able to say that this or
that element having been isolated, negligence is shown. The factors that enter the judgment are too many and diverse
for us to imprison them in a formula sufficient of itself to yield the correct answer to the multi-faceted problems the
question of negligence poses. Every case must be dependent on its facts. The circumstances indicative of lack of due
care must be judged in the light of what could reasonably be expected of the parties. If the objective standard of
prudence be met, then negligence is ruled out.

In this particular case, it would be to show less than fidelity to the controlling facts to impute negligence to
defendant-appellee. The first three errors assigned certainly do not call for that conclusion.
4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant apparently had in mind
this portion of the opinion of the lower court: "The weight of authorities is to the effect that a railroad track is in itself
a warning or a signal of danger to those who go upon it, and that those who, for reasons of their own, ignore such
warning, do so at their own risk and responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint
frequently, if not daily, must have known that locomotive engines and trains usually pass at that particular crossing
where the accident had taken place." 15
Her assignment of error, however, would single out not the above excerpt from the decision appealed from but what
to her is the apparent reliance of the lower court on Mestres v. Manila Electric Railroad & Light Co. 16 and United
States v. Manlabat & Pasibi. 17 In the Manabat case, the doctrine announced by this Court follows: "A person in
control of an automobile who crosses a railroad, even at a regular road crossing, and who does not exercise that
precaution and that control over it as to be able to stop the same almost immediately upon the appearance of a train, is
guilty of criminal negligence, providing a collision occurs and injury results. Considering the purposes and the general
methods adopted for the management of railroads and railroad trains, we think it is incumbent upon one approaching a
railroad crossing to use all of his faculties of seeing and hearing. He should approach a railroad crossing cautiously
and carefully. He should look and listen and do everything that a reasonably prudent man would do before he attempts
to cross the track." The Mestres doctrine in a suit arising from a collision between an automobile and a street car is
substantially similar. Thus: "It may be said, however, that, where a person is nearing a street crossing toward which a
car is approaching, the duty is on the party to stop and avoid a collision who can most readily adjust himself to the
exigencies of the case, and where such person can do so more readily, the motorman has a right to presume that such
duty will be performed."
It is true, as plaintiff-appellant would now allege that there has been a drift away from the apparent rigid and
inflexible doctrine thus set forth in the two above cases evidenced by Lilius v. Manila Railroad Co., 18 the controlling
facts of which, however, are easily distinguishable from what had been correctly ascertained in the present case. Such
a deviation from the earlier principle announced is not only true of this jurisdiction but also of the United States.
This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the following to say:
"Especially noteworthy in this respect is the attempt Mr. Justice Holmes, in Baltimore & Ohio Railway v. Goodman,
to 'lay down a standard once for all,' which would require an automobile driver approaching a railroad crossing with
an obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train is coming to get out of the
car. The basic idea behind this is sound enough: it is by no means proper care to cross a railroad track without taking
reasonable precautions against a train, and normally such precautions will require looking, hearing, and a stop, or at
least slow speed, where the view is obstructed." 19
Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where, according to Prosser, it being
shown that "the only effective stop must be made upon the railway tracks themselves, in a position of obligation
danger, the court disregarded any such uniform rule, rejecting the 'get out of the car' requirement as 'an uncommon
precaution, likely to be futile and sometimes even dangerous,' and saying that the driver need not always stop.
'Illustrations such as these,' said Mr. Justice Cardozo 'bear witness to the need for caution in framing standards of
behavior that amount to rules of law.... Extraordinary situations may not wisely or fairly be subjected to tests or
regulations that are fitting for the commonplace or normal." 21
What Justice Cardozo announced would merely emphasize what was set forth earlier that each and every, case on
questions of negligence is to be decided in accordance with the peculiar circumstances that present themselves. There
can be no hard and fast rule. There must be that observance of that degree of care, precaution, and vigilance which the

situation demands. Thus defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed
to it.
What commends itself for acceptance is this conclusion arrived at by the lower court: "Predicated on the testimonies
of the plaintiff's witnesses, on the knowledge of the deceased and his familiarity with the setup of the checkpoint, the
existence of the tracks; and on the further fact that the locomotive had blown its siren or whistle, which was heard by
said witnesses, it is clear that Corliss Jr. was so sufficiently warned in advance of the oncoming train that it was
incumbent upon him to avoid a possible accident and this consisted simply in stopping his vehicle before the
crossing and allowing the train to move on. A prudent man under similar circumstances would have acted in this
manner. This, unfortunately, Corliss, Jr. failed to do." 22
WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint, is affirmed. Without
pronouncement as to costs.

G.R. No. L-32611

November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,

vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.

Gibbs and McDonough for appellant.

Benj. S. Ohnick for appellee.

STREET, J.:
This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric Co., Inc., for the
purpose of recovering from the Philippine Motors Corporation the sum of P11,350, with interest and costs. Upon
hearing the cause the trial court gave judgment in favor of the plaintiff to recover of the defendant the sum of P9,850,
with interest at 6 per centum per annum from March 24,1927, the date of the filing of the complaint, until satisfaction
of the judgment, with costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the incident with which we are here
concerned, 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 January, 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. He
therefore made known his desire to McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of said
company, that he might make inquiries of the Philippine Motors Corporations, which had its office on Ongpin Street,
in the City of Manila. Cranston accordingly repaired to the office of the Philippine Motors Corporation and had a
conference with C.E. Quest, its manager, 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 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.
As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline while it lay at anchor
in the Pasig River, and the work of effecting the change in the engine was begun and conducted under the supervision
of Quest, chiefly by a mechanic whom Quest took with him to the boat. In this work Quest had the assistance of the
members of the crew of the Gwendoline, who had been directed by Cranston to place themselves under Quest's
directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary to
accomplish the end in view was to install a new carburetor, 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. For this purpose a temporary tank
to contain the mixture was placed on deck above and at a short distance from the compartment covering the engine.
This tank was connected with the carburetor by a piece of tubing, which was apparently not well fitted at the point
where it was connected with the tank. Owing to this fact the fuel mixture leaked from the tank and dripped sown into
the engine compartment. The new fuel line and that already in use between the gasoline tank and carburetor were so
fixed that it was possible to change from the gasoline fuel to the mixed fuel. The purpose of this arrangement was to
enable the operator to start the engine on gasoline and then, after the engine had been operating for a few moments, to
switch to the new fuel supply.
lawphil.net

In the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetor was
flooding, and that the gasoline, or other fuel, was trickling freely from the lower part to the carburetor to the floor.

This fact was called to Quest's attention, but he appeared to think lightly of the matter and said that, when the engine
had gotten to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made the boat was taken out into the bay for a trial run at
about 5 p.m. or a little later, on the evening of January 30,1925. The first part of the course was covered without any
untoward development, other than he fact that the engine stopped a few times, owing no doubt to the use of an
improper mixture of fuel. In the course of the trial Quest remained outside of the engine compartment and occupied
himself with making distillate, with a view to ascertaining what proportion of the two elements would give best results
in the engine.
As the boat was coming in from this 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 the Gwendoline 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.
A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the negligence and lack
of skill of Quest. The temporary tank in which the mixture was prepared was apparently at too great an elevation from
the carburetor, with the result that when the fuel line was opened, the hydrostatic pressure in the carburetor was
greater than the delicate parts of the carburetor could sustain. This was no doubt the cause of the flooding of the
carburetor; and the result was that; when the back fire occurred, the external parts of the carburetor, already saturated
with gasoline, burst into flames, whence the fire was quickly communicated to the highly inflammable material nearby. Ordinarily a back fire from an engine would not be followed by any disaster, but in this case the leak along the
pipe line and the flooding of the carburetor had created a dangerous situation, which a prudent mechanic, versed in
repairs of this nature, would have taken precautions to avoid. The back fire may have been due either to the fact that
the spark was too advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as being competent to do things
requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one
ordinarily skilled in the particular work which he attempts to do. The proof shows that Quest had had ample
experience in fixing the engines of automobiles and tractors, but it does not appear that he was experienced in the
doing of similar work on boats. For this reason, possibly the dripping of the mixture form the tank on deck and the
flooding of the carburetor did not convey to his mind an adequate impression of the danger of fire. But a person
skilled in that particular sort of work would, we think have been sufficiently warned from those circumstances to
cause him to take greater and adequate precautions against the danger. In other words Quest did not use the skill that
would have been exhibited by one ordinarily expert in repairing gasoline engines on boats. There was here, in our
opinion, on the part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes
negligence. The burning of the Gwendoline may be said to have resulted from accident, but this accident was in no
sense an unavoidable accident. It would not have occured but for Quest's carelessness or lack of skill. The test of
liability is not whether the injury was accidental in a sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or negligence in
effecting the changes which Quest undertook to accomplish; and even supposing that our theory as to the exact
manner in which the accident occurred might appear to be in some respects incorrect, yet the origin of the fire in not
so inscrutable as to enable us to say that it was casus fortuitus.

The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendoline during the
experimental run, the defendant corporation was in the position of 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. 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 Gwendolineand the damages resulting
therefrom are chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured, and after Quest had ceased to be
manager of the defendant corporation and had gone back to the United States. Upon these facts, the defendant bases
the contention that the action should be considered stale. It is sufficient reply to say that the action was brought within
the period limited by the statute of limitations and the situation is not one where the defense of laches can be properly
invoked.
It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850, with interest,
must be affirmed; and it is so ordered, with costs against the appellant.

G.R. No. L-12191

October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.

FISHER, J.:

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment of
Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo,
in the province of Rizal, which is located upon the line of the defendant railroad company; and in coming daily by
train to the company's office in the city of Manila where he worked, he used a pass, supplied by the company, which
entitled him to ride upon the company's trains free of charge. Upon the occasion in question, January 20, 1915, the
plaintiff arose from his seat in the second class-car where he was riding and, making, his exit through the door, took
his position upon the steps of the coach, seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins to
rise with a moderate gradient some distance away from the company's office and extends along in front of said office
for a distance sufficient to cover the length of several coaches. As the train slowed down another passenger, named
Emilio Zuiga, also an employee of the railroad company, got off the same car, alighting safely at the point where the
platform begins to rise from the level of the ground. When the train had proceeded a little farther the plaintiff Jose
Cangco stepped off also, but one or both of his feet came in contact with a sack of watermelons with the result that his
feet slipped from under him and he fell violently on the platform. His body at once rolled from the platform and was
drawn under the moving car, where his right arm was badly crushed and lacerated. It appears that after the plaintiff
alighted from the train the car moved forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a
single light located some distance away, objects on the platform where the accident occurred were difficult to discern
especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the fact
that it was the customary season for harvesting these melons and a large lot had been brought to the station for the
shipment to the market. They were contained in numerous sacks which has been piled on the platform in a row one
upon another. The testimony shows that this row of sacks was so placed of melons and the edge of platform; and it is
clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at the moment he
stepped upon the platform. His statement that he failed to see these objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which he had
received were very serious. He was therefore brought at once to a certain hospital in the city of Manila where an
examination was made and his arm was amputated. The result of this operation was unsatisfactory, and the plaintiff
was then carried to another hospital where a second operation was performed and the member was again amputated
higher up near the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover
damages of the defendant company, founding his action upon the negligence of the servants and employees of the
defendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to the
security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his Honor, the
trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the effect that, although
negligence was attributable to the defendant by reason of the fact that the sacks of melons were so placed as to
obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had failed to use due caution in
alighting from the coach and was therefore precluded form recovering. Judgment was accordingly entered in favor of
the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on
the platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the train;
and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarily
follows that the defendant company is liable for the damage thereby occasioned unless recovery is barred by the

plaintiff's own contributory negligence. In resolving this problem it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the defendant company and the contributory negligence of the plaintiff
should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the
obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that contract by
reason of the failure of defendant to exercise due care in its performance. That is to say, its liability is direct and
immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the negligence of its
servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their
selection and supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only
to extra-contractual obligations or to use the technical form of expression, that article relates only to culpaaquiliana
and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this
distinction, which was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points out the difference between " culpa,
substantive and independent, which of itself constitutes the source of an obligation between persons not formerly
connected by any legal tie" and culpa considered as an accident in the performance of an obligation already existing . .
. ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903 of
the Civil Code is not applicable to acts of negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be those
not growing out of pre-existing duties of the parties to one another. But where relations already formed give
rise to duties, whether springing from contract or quasi-contract, then breaches of those duties are subject to
article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at
365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposed
upon employers with respect to damages occasioned by the negligence of their employees to persons to whom they
are not bound by contract, is not based, as in the English Common Law, upon the principle of respondeat superior
if it were, the master would be liable in every case and unconditionally but upon the principle announced in
article 1902 of the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another,
the obligation of making good the damage caused. One who places a powerful automobile in the hands of a servant
whom he knows to be ignorant of the method of managing such a vehicle, is himself guilty of an act of negligence
which makes him liable for all the consequences of his imprudence. The obligation to make good the damage arises at
the very instant that the unskillful servant, while acting within the scope of his employment causes the injury. The
liability of the master is personal and direct. But, if the master has not been guilty of any negligence whatever in the
selection and direction of the servant, he is not liable for the acts of the latter, whatever done within the scope of his
employment or not, if the damage done by the servant does not amount to a breach of the contract between the master
and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the master
from liability for the latter's acts on the contrary, that proof shows that the responsibility has never existed. As
Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is always based upon a voluntary act or
omission which, without willful intent, but by mere negligence or inattention, has caused damage to another. A master
who exercises all possible care in the selection of his servant, taking into consideration the qualifications they should

possess for the discharge of the duties which it is his purpose to confide to them, and directs them with equal
diligence, thereby performs his duty to third persons to whom he is bound by no contractual ties, and he incurs no
liability whatever if, by reason of the negligence of his servants, even within the scope of their employment, such third
person suffer damage. True it is that under article 1903 of the Civil Code the law creates apresumption that he has
been negligent in the selection or direction of his servant, but the presumption is rebuttable and yield to proof of due
care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held that
these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico
Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes, (30
Phil. rep., 624), which was an action brought upon the theory of the extra-contractual liability of the defendant to
respond for the damage caused by the carelessness of his employee while acting within the scope of his employment.
The Court, after citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law that there was negligence on the part of the master or
employer either in selection of the servant or employee, or in supervision over him after the selection, or both;
and (2) that that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision
he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is
relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on that of his
servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in striking contrast to
the American doctrine that, in relations with strangers, the negligence of the servant in conclusively the
negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon negligence,
it is necessary that there shall have been some fault attributable to the defendant personally, and that the last paragraph
of article 1903 merely establishes a rebuttable presumption, is in complete accord with the authoritative opinion of
Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by reason of the breach of the
duties inherent in the special relations of authority or superiority existing between the person called upon to repair the
damage and the one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or
agents, when such acts or omissions cause damages which amount to the breach of a contact, is not based upon a mere
presumption of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and
care in this regard does not relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source
in the breach or omission of those mutual duties which civilized society imposes upon it members, or which arise
from these relations, other than contractual, of certain members of society to others, generally embraced in the concept
of status. The legal rights of each member of society constitute the measure of the corresponding legal duties, mainly
negative in character, which the existence of those rights imposes upon all other members of society. The breach of
these general duties whether due to willful intent or to mere inattention, if productive of injury, give rise to an
obligation to indemnify the injured party. The fundamental distinction between obligations of this character and those
which arise from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent

act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculumexists
independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for
the legislature to elect and our Legislature has so elected whom such an obligation is imposed is morally
culpable, or, on the contrary, for reasons of public policy, to extend that liability, without regard to the lack of moral
culpability, so as to include responsibility for the negligence of those person who acts or mission are imputable, by a
legal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislature which
adopted our Civil Code has elected to limit extra-contractual liability with certain well-defined exceptions to
cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility may
consist in having failed to exercise due care in the selection and control of one's agents or servants, or in the control of
persons who, by reason of their status, occupy a position of dependency with respect to the person made liable for
their conduct.
The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly
different from that to which article 1903 relates. When the sources of the obligation upon which plaintiff's cause of
action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence if he
does not his action fails. But when the facts averred show a contractual undertaking by defendant for the benefit of
plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to
specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the
defendant, or of his servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie to
warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume the
burden of proof of its existence, as the only fact upon which his action is based; while on the contrary, in a
case of negligence which presupposes the existence of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p. 71
[1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to the
negligent conduct of defendant or of his servants, even though such be in fact the actual cause of the breach, it is
obvious that proof on the part of defendant that the negligence or omission of his servants or agents caused the breach
of the contract would not constitute a defense to the action. If the negligence of servants or agents could be invoked as
a means of discharging the liability arising from contract, the anomalous result would be that person acting through
the medium of agents or servants in the performance of their contracts, would be in a better position than those acting
in person. If one delivers a valuable watch to watchmaker who contract to repair it, and the bailee, by a personal
negligent act causes its destruction, he is unquestionably liable. Would it be logical to free him from his liability for
the breach of his contract, which involves the duty to exercise due care in the preservation of the watch, if he shows
that it was his servant whose negligence caused the injury? If such a theory could be accepted, juridical persons would
enjoy practically complete immunity from damages arising from the breach of their contracts if caused by negligent
acts as such juridical persons can of necessity only act through agents or servants, and it would no doubt be true in
most instances that reasonable care had been taken in selection and direction of such servants. If one delivers
securities to a banking corporation as collateral, and they are lost by reason of the negligence of some clerk employed
by the bank, would it be just and reasonable to permit the bank to relieve itself of liability for the breach of its contract
to return the collateral upon the payment of the debt by proving that due care had been exercised in the selection and
direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident to
the performance of a contract has frequently been recognized by the supreme court of Spain. ( Sentencias of June 27,

1894; November 20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared that
plaintiff's action arose ex contractu, but that defendant sought to avail himself of the provisions of article 1902 of the
Civil Code as a defense. The Spanish Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as
those to which article 1902 of the Civil Code relates, but of damages caused by the defendant's failure to
carry out the undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage done by the
negligent acts of their servants will show that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for the
damages caused by the negligence of his driver. In that case the court commented on the fact that no evidence had
been adduced in the trial court that the defendant had been negligent in the employment of the driver, or that he had
any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff sued the
defendant for damages caused by the loss of a barge belonging to plaintiff which was allowed to get adrift by the
negligence of defendant's servants in the course of the performance of a contract of towage. The court held, citing
Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it and the
plaintiff . . . we do not think that the provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for the
personal injuries caused by the negligence of defendant's chauffeur while driving defendant's automobile in which
defendant was riding at the time. The court found that the damages were caused by the negligence of the driver of the
automobile, but held that the master was not liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a reasonable
opportunity to observe them and to direct the driver to desist therefrom. . . . The act complained of must be
continued in the presence of the owner for such length of time that the owner by his acquiescence, makes the
driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that
the court rested its conclusion as to the liability of the defendant upon article 1903, although the facts disclosed that
the injury complaint of by plaintiff constituted a breach of the duty to him arising out of the contract of transportation.
The express ground of the decision in this case was that article 1903, in dealing with the liability of a master for the
negligent acts of his servants "makes the distinction between private individuals and public enterprise;" that as to the
latter the law creates a rebuttable presumption of negligence in the selection or direction of servants; and that in the
particular case the presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though founded in tort
rather than as based upon the breach of the contract of carriage, and an examination of the pleadings and of the briefs
shows that the questions of law were in fact discussed upon this theory. Viewed from the standpoint of the defendant
the practical result must have been the same in any event. The proof disclosed beyond doubt that the defendant's
servant was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. It also affirmatively
appeared that defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of the
servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach of the duty were to be
regarded as constituting culpa aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether
negligence occurs an incident in the course of the performance of a contractual undertaking or its itself the source of
an extra-contractual undertaking obligation, its essential characteristics are identical. There is always an act or

omission productive of damage due to carelessness or inattention on the part of the defendant. Consequently, when the
court holds that a defendant is liable in damages for having failed to exercise due care, either directly, or in failing to
exercise proper care in the selection and direction of his servants, the practical result is identical in either case.
Therefore, it follows that it is not to be inferred, because the court held in the Yamada case that defendant was liable
for the damages negligently caused by its servants to a person to whom it was bound by contract, and made reference
to the fact that the defendant was negligent in the selection and control of its servants, that in such a case the court
would have held that it would have been a good defense to the action, if presented squarely upon the theory of the
breach of the contract, for defendant to have proved that it did in fact exercise care in the selection and control of the
servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual and
extra-contractual obligations. The field of non- contractual obligation is much more broader than that of contractual
obligations, comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively
speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve him
from extra-contractual liability to such person. When such a contractual relation exists the obligor may break the
contract under such conditions that the same act which constitutes the source of an extra-contractual obligation had no
contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and to
provide safe means of entering and leaving its trains (civil code, article 1258). That duty, being contractual, was direct
and immediate, and its non-performance could not be excused by proof that the fault was morally imputable to
defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent conduct of its servants
in placing an obstruction upon the platform was a breach of its contractual obligation to maintain safe means of
approaching and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was his own
contributory negligence in failing to wait until the train had come to a complete stop before alighting. Under the
doctrine of comparative negligence announced in the Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant's negligence and plaintiff's negligence merely contributed to his
injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant was in fact guilty of
negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular injury
suffered by him could not have occurred. Defendant contends, and cites many authorities in support of the contention,
that it is negligence per se for a passenger to alight from a moving train. We are not disposed to subscribe to this
doctrine in its absolute form. We are of the opinion that this proposition is too badly stated and is at variance with the
experience of every-day life. In this particular instance, that the train was barely moving when plaintiff alighted is
shown conclusively by the fact that it came to stop within six meters from the place where he stepped from it.
Thousands of person alight from trains under these conditions every day of the year, and sustain no injury where the
company has kept its platform free from dangerous obstructions. There is no reason to believe that plaintiff would
have suffered any injury whatever in alighting as he did had it not been for defendant's negligent failure to perform its
duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on
Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in attempting to alight
from a moving railway train, is that of ordinary or reasonable care. It is to be considered whether an
ordinarily prudent person, of the age, sex and condition of the passenger, would have acted as the passenger
acted under the circumstances disclosed by the evidence. This care has been defined to be, not the care which

may or should be used by the prudent man generally, but the care which a man of ordinary prudence would
use under similar circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol. 3, sec.
3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep., 809), we may say
that the test is this; Was there anything in the circumstances surrounding the plaintiff at the time he alighted from the
train which would have admonished a person of average prudence that to get off the train under the conditions then
existing was dangerous? If so, the plaintiff should have desisted from alighting; and his failure so to desist was
contributory negligence.
1awph!l.net

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that
plaintiff was guilty of contributory negligence is that he stepped off the car without being able to discern clearly the
condition of the platform and while the train was yet slowly moving. In considering the situation thus presented, it
should not be overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which was caused
by the sacks of melons piled on the platform existed; and as the defendant was bound by reason of its duty as a public
carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the
absence of some circumstance to warn him to the contrary, that the platform was clear. The place, as we have already
stated, was dark, or dimly lighted, and this also is proof of a failure upon the part of the defendant in the performance
of a duty owing by it to the plaintiff; for if it were by any possibility concede that it had right to pile these sacks in the
path of alighting passengers, the placing of them adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following
circumstances are to be noted: The company's platform was constructed upon a level higher than that of the roadbed
and the surrounding ground. The distance from the steps of the car to the spot where the alighting passenger would
place his feet on the platform was thus reduced, thereby decreasing the risk incident to stepping off. The nature of the
platform, constructed as it was of cement material, also assured to the passenger a stable and even surface on which to
alight. Furthermore, the plaintiff was possessed of the vigor and agility of young manhood, and it was by no means so
risky for him to get off while the train was yet moving as the same act would have been in an aged or feeble person. In
determining the question of contributory negligence in performing such act that is to say, whether the passenger
acted prudently or recklessly the age, sex, and physical condition of the passenger are circumstances necessarily
affecting the safety of the passenger, and should be considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as the nature of their wearing apparel obstructs the
free movement of the limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff as it was his
daily custom to get on and of the train at this station. There could, therefore, be no uncertainty in his mind with regard
either to the length of the step which he was required to take or the character of the platform where he was alighting.
Our conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly under way
was not characterized by imprudence and that therefore he was not guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, and that
the injuries he has suffered have permanently disabled him from continuing that employment. Defendant has not
shown that any other gainful occupation is open to plaintiff. His expectancy of life, according to the standard mortality
tables, is approximately thirty-three years. We are of the opinion that a fair compensation for the damage suffered by
him for his permanent disability is the sum of P2,500, and that he is also entitled to recover of defendant the additional
sum of P790.25 for medical attention, hospital services, and other incidental expenditures connected with the
treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and for
the costs of both instances. So ordered.

G.R. No. 77679 September 30, 1987

VICENTE VERGARA, petitioner,
vs.
THE COURT OF APPEALS and AMADEO AZARCON, respondents.
RESOLUTION

PADILLA, J.:
An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private respondent against
petitioner. The action arose from a vehicular accident that occurred on 5 August 1979 in Gapan, Nueva Ecija, when
Martin Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-on" the store-residence of the
private respondent, causing damages thereto which were inventoried and assessed at P53,024.22.
In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte operated said cargo
truck in a very diligent (and) careful manner; that the steering wheel refused to respond to his effort and as a result of
a blown-out tire and despite application of his brakes, the said cargo truck hit the store-residence of plaintiff (private
respondent) and that the said accident was an act of God for which he cannot be held liable." 1
Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation, alleging that said
cargo truck involved in the vehicular accident, belonging to the petitioner, was insured by the third party defendant
insurance company. Petitioner asked that the latter be ordered to pay him whatever amount he may be ordered by the
court to pay to the private respondent.
The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of Appeals, the latter court
affirmed in toto the decision of the trial court, which ordered Petitioner to pay, jointly and severally with Travellers
Insurance and Surety Corporation, to the private, respondent the following: (a) P53,024.22 as actual damages; (b)
P10,000.00 as moral damages; (c) P10,000.00 as exemplary damages; and (d) the sum of P5,000.00 for attorney's fees
and the costs. On the third party complaint, the insurance company was sentenced to pay to the petitioner the
following: (a) P50,000.00 for third party liability under its comprehensive accident insurance policy; and (b)
P3,000.00 for and as attorney's fees.
Hence, this petition for review on certiorari.

Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is not tenable. It was
established by competent evidence that the requisites of a quasi-delict are present in the case at bar. These requisites
are: (1) damages to the plaintiff; (2) negligence, by act or omission, of which defendant, or some person for whose
acts he must respond, was guilty; and (3) the connection of cause and effect between such negligence and the
damages.
It is undisputed that private respondent suffered damages as a result of an act or omission of petitioner. The issue of
whether or not this act or omission can be considered as a "negligent" act or omission was passed upon by the trial
court. The findings of said court, affirmed by the respondent court, which we are not prepared to now disturb, show
that the fact of occurrence of the "vehicular accident" was sufficiently established by the policy report and the
testimony of Patrolman Masiclat. And the fact of negligence may be deduced from the surrounding circumstances
thereof. According to the police report, "the cargo truck was travelling on the right side of the road going to Manila
and then it crossed to the center line and went to the left side of the highway; it then bumped a tricycle; and then
another bicycle; and then said cargo truck rammed the store warehouse of the plaintiff." 2
According to the driver of the cargo truck, he applied the brakes but the latter did not work due to mechanical defect.
Contrary to the claim of the petitioner, a mishap caused by defective brakes can not be consideration as fortuitous in
character. Certainly, the defects were curable and the accident preventable.
Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption of negligence on
his part in the selection and supervision of his driver.
Based on the foregoing finding by the respondent Court that there was negligence on the part of the petitioner, the
petitioner's contention that the respondent court erred in awarding private respondent actual, moral and exemplary
damages as well as attorney's fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.

G.R. No. L-44748 August 29, 1986

RADIO COMMUNICATIONS OF THE PHILS., INC. (RCPI). petitioner,
vs.
COURT OF APPEALS and LORETO DIONELA, respondents.
O. Pythogoras Oliver for respondents.

PARAS, J.:
Before Us, is a Petition for Review by certiorari of the decision of the Court of Appeals, modifying the decision of the
trial court in a civil case for recovery of damages against petitioner corporation by reducing the award to private
respondent Loreto Dionela of moral damages from P40,000 to Pl5,000, and attorney's fees from P3,000 to P2,000.
The basis of the complaint against the defendant corporation is a telegram sent through its Manila Office to the
offended party, Loreto Dionela, reading as follows:
176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66 LORETO DIONELA CABANGAN
LEGASPI CITY
WIRE ARRIVAL OF CHECK FER
LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-PER
115 PM
SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA-KANG PADALA DITO
KAHIT BULBUL MO
(p. 19, Annex "A")
Plaintiff-respondent Loreto Dionela alleges that the defamatory words on the telegram sent to him not only wounded
his feelings but also caused him undue embarrassment and affected adversely his business as well because other
people have come to know of said defamatory words. Defendant corporation as a defense, alleges that the additional
words in Tagalog was a private joke between the sending and receiving operators and that they were not addressed to
or intended for plaintiff and therefore did not form part of the telegram and that the Tagalog words are not defamatory.
The telegram sent through its facilities was received in its station at Legaspi City. Nobody other than the operator
manned the teletype machine which automatically receives telegrams being transmitted. The said telegram was
detached from the machine and placed inside a sealed envelope and delivered to plaintiff, obviously as is. The
additional words in Tagalog were never noticed and were included in the telegram when delivered.

The trial court in finding for the plaintiff ruled as follows:

There is no question that the additional words in Tagalog are libelous. They clearly impute a vice or
defect of the plaintiff. Whether or not they were intended for the plaintiff, the effect on the plaintiff is
the same. Any person reading the additional words in Tagalog will naturally think that they refer to
the addressee, the plaintiff. There is no indication from the face of the telegram that the additional
words in Tagalog were sent as a private joke between the operators of the defendant.
The defendant is sued directly not as an employer. The business of the defendant is to transmit
telegrams. It will open the door to frauds and allow the defendant to act with impunity if it can escape
liability by the simple expedient of showing that its employees acted beyond the scope of their
assigned tasks.
The liability of the defendant is predicated not only on Article 33 of the Civil Code of the Philippines
but on the following articles of said Code:
ART. 19.- Every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith.
ART. 20.-Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
There is sufficient publication of the libelous Tagalog words. The office file of the defendant
containing copies of telegrams received are open and held together only by a metal fastener.
Moreover, they are open to view and inspection by third parties.
It follows that the plaintiff is entitled to damages and attorney's fees. The plaintiff is a businessman.
The libelous Tagalog words must have affected his business and social standing in the community.
The Court fixes the amount of P40,000.00 as the reasonable amount of moral damages and the
amount of P3,000.00 as attorney's fee which the defendant should pay the plaintiff. (pp. 15-16,
Record on Appeal)
The respondent appellate court in its assailed decision confirming the aforegoing findings of the lower court stated:
The proximate cause, therefore, resulting in injury to appellee, was the failure of the appellant to take
the necessary or precautionary steps to avoid the occurrence of the humiliating incident now
complained of. The company had not imposed any safeguard against such eventualities and this void
in its operating procedure does not speak well of its concern for their clientele's interests. Negligence
here is very patent. This negligence is imputable to appellant and not to its employees.
The claim that there was no publication of the libelous words in Tagalog is also without merit. The
fact that a carbon copy of the telegram was filed among other telegrams and left to hang for the
public to see, open for inspection by a third party is sufficient publication. It would have been
otherwise perhaps had the telegram been placed and kept in a secured place where no one may have
had a chance to read it without appellee's permission.
The additional Tagalog words at the bottom of the telegram are, as correctly found by the lower
court, libelous per se, and from which malice may be presumed in the absence of any showing of
good intention and justifiable motive on the part of the appellant. The law implies damages in this
instance (Quemel vs. Court of Appeals, L-22794, January 16, 1968; 22 SCRA 44). The award of
P40,000.00 as moral damages is hereby reduced to P15,000.00 and for attorney's fees the amount of
P2,000.00 is awarded. (pp. 22-23, record)

After a motion for reconsideration was denied by the appellate court, petitioner came to Us with the following:
ASSIGNMENT OF ERRORS
I
The Honorable Court of Appeals erred in holding that Petitioner-employer should answer directly and
primarily for the civil liability arising from the criminal act of its employee.
II
The Honorable Court of Appeals erred in holding that there was sufficient publication of the alleged
libelous telegram in question, as contemplated by law on libel.
III
The Honorable Court of Appeals erred in holding that the liability of petitioner-company-employer is
predicated on Articles 19 and 20 of the Civil Code, Articles on Human Relations.
IV
The Honorable Court of Appeals erred in awarding Atty's. fees. (p. 4, Record)
Petitioner's contentions do not merit our consideration. The action for damages was filed in the lower court directly
against respondent corporation not as an employer subsidiarily liable under the provisions of Article 1161 of the New
Civil Code in relation to Art. 103 of the Revised Penal Code. The cause of action of the private respondent is based on
Arts. 19 and 20 of the New Civil Code (supra). As well as on respondent's breach of contract thru the negligence of its
own employees. 1
Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime a
person transmits a message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rate or
fee fixed, the petitioner undertakes to transmit the message accurately. There is no question that in the case at bar,
libelous matters were included in the message transmitted, without the consent or knowledge of the sender. There is a
clear case of breach of contract by the petitioner in adding extraneous and libelous matters in the message sent to the
private respondent. As a corporation, the petitioner can act only through its employees. Hence the acts of its
employees in receiving and transmitting messages are the acts of the petitioner. To hold that the petitioner is not liable
directly for the acts of its employees in the pursuit of petitioner's business is to deprive the general public availing of
the services of the petitioner of an effective and adequate remedy. In most cases, negligence must be proved in order
that plaintiff may recover. However, since negligence may be hard to substantiate in some cases, we may apply the
doctrine of RES IPSA LOQUITUR (the thing speaks for itself), by considering the presence of facts or circumstances
surrounding the injury.
WHEREFORE, premises considered, the judgment of the appellate court is hereby AFFIRMED.
SO ORDERED.

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of First Instance of Negros
Occidental 1 by private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for
brevity) for the injuries they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and fell
into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the
creeping darkness and the lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban
allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband
suffered cut lips. In addition, the windshield of the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result
of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company
(Barte, for short), an independent contractor which undertook the construction of the manhole and the conduit
system. 3 Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the terms of their agreement,
PLDT should in no manner be answerable for any accident or injuries arising from the negligence or carelessness of Barte
or any of its employees. 4 In answer thereto, Barte claimed that it was not aware nor was it notified of the accident involving
respondent spouses and that it had complied with the terms of its contract with PLDT by installing the necessary and
appropriate standard signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights
at night along the excavated area to warn the traveling public of the presence of excavations. 5
On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which
reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone
Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral
damages and P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as
moral damages and P500.00 as exemplary damages, with legal rate of interest from the date of the
filing of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff the sum of
P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third
party plaintiff has paid to the plaintiff. With costs against the defendant. 6
From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said appealed
case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and dismissing the
complaint of respondent spouses. It held that respondent Esteban spouses were negligent and consequently absolved

petitioner PLDT from the claim for damages. 7 A copy of this decision was received by private respondents on October
10, 1979. 8 On October 25, 1979, said respondents filed a motion for reconsideration dated October 24, 1979. 9 On January
24, 1980, the Special Ninth Division of the Court of Appeals denied said motion for reconsideration. 10 This resolution was
received by respondent spouses on February 22, 1980. 11
On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to file a
second motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution
likewise penned by Justice Agrava, allowed respondents to file a second motion for reconsideration, within ten (10) days
from notice thereof. 13 Said resolution was received by private respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the resolution of the second motion for
reconsideration, designated two additional justices to form a division of five. 16 On September 3, 1980, said division of five
promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well
as the resolution dated, January 24,1980, and affirming in toto the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution of
September 3, 1980, contending that the second motion for reconsideration of private respondent spouses was filed out
of time and that the decision of September 25, 1979 penned by Justice Agrava was already final. It further submitted
therein that the relationship of Barte and petitioner PLDT should be viewed in the light of the contract between them
and, under the independent contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On May 11,
1981, respondent Court of Appeals promulgated its resolution denying said motion to set aside and/or for reconsideration
and affirming in toto the decision of the lower court dated October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration on the
ground that the decision of the Special Second Division, dated September 25, 1979, and the resolution of the Special
Ninth Division, dated January 24, 1980, are already final, and on the additional ground that said second motion for
reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the independent
contractor rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted by
both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava
asponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was received by private respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by
private respondents
(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;

(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for
reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original
decision dated September 25, 1979 and setting aside the resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for
reconsideration and, consequently, said second motion for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second motion
for reconsideration may be presented within fifteen (15) days from notice of the order or judgment deducting the time
in which the first motion has been pending. 20 Private respondents having filed their first motion for reconsideration on
the last day of the reglementary period of fifteen (15) days within which to do so, they had only one (1) day from receipt of
the order denying said motion to file, with leave of court, a second motion for reconsideration. 21 In the present case, after
their receipt on February 22, 1980 of the resolution denying their first motion for reconsideration, private respondents had
two remedial options. On February 23, 1980, the remaining one (1) day of the aforesaid reglementary period, they could
have filed a motion for leave of court to file a second motion for reconsideration, conceivably with a prayer for the
extension of the period within which to do so. On the other hand, they could have appealed through a petition for review on
certiorari to this Court within fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a
second motion 'for reconsideration on February 29, 1980, and said second motion for reconsideration on March 7, 1980,
both of which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of which
was suspended during the pendency of the first motion for reconsideration, the Court of Appeals could no longer
validly take further proceedings on the merits of the case, much less to alter, modify or reconsider its aforesaid
decision and/or resolution. The filing of the motion for leave to file a second motion for reconsideration by herein
respondents on February 29, 1980 and the subsequent filing of the motion itself on March 7, 1980, after the expiration
of the reglementary period to file the same, produced no legal effects. Only a motion for re-hearing or reconsideration
filed in time shall stay the final order or judgment sought to be re-examined. 23
The consequential result is that the resolution of respondent court of March 11, 1980 granting private respondents'
aforesaid motion for leave and, giving them an extension of ten (10) days to file a second motion for reconsideration,
is null and void. The period for filing a second motion for reconsideration had already expired when private
respondents sought leave to file the same, and respondent court no longer had the power to entertain or grant the said
motion. The aforesaid extension of ten (10) days for private respondents to file their second motion for
reconsideration was of no legal consequence since it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed prior to the expiration of the period sought to be
extended. 24 Necessarily, the discretion of respondent court to grant said extension for filing a second motion for
reconsideration is conditioned upon the timeliness of the motion seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became final and
executory on March 9, 1980. The subsequent resolutions of respondent court, dated March 11, 1980 and September 3,
1980, allowing private respondents to file a second motion for reconsideration and reversing the original decision are
null and void and cannot disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but in
line with the accepted rule that once a decision has become final and executory it is removed from the power and
jurisdiction of the court which rendered it to further alter or amend, much less revoke it. 25 The decision rendered anew
is null and void. 26 The court's inherent power to correct its own errors should be exercised before the finality of the
decision or order sought to be corrected, otherwise litigation will be endless and no question could be considered finally
settled. Although the granting or denial of a motion for reconsideration involves the exercise of discretion, 27 the same

should not be exercised whimsically, capriciously or arbitrarily, but prudently in conformity with law, justice, reason and
equity. 28

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the
findings of the respondent court in its original decision that the accident which befell private respondents was due to
the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the part of
petitioner PLDT. Such findings were reached after an exhaustive assessment and evaluation of the evidence on record,
as evidenced by the respondent court's resolution of January 24, 1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that
inside lane, it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving
from the left that is, swerving from the inside lane. What caused the swerving is not disclosed; but, as
the cause of the accident, defendant cannot be made liable for the damages suffered by plaintiffs. The
accident was not due to the absence of warning signs, but to the unexplained abrupt swerving of the
jeep from the inside lane. That may explain plaintiff-husband's insistence that he did not see the
ACCIDENT MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND
could have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT
MOUND.
It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4
meters where the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson
Street north of the ACCIDENT MOUND had already been covered, but not in such a way as to allow
the outer lane to be freely and conveniently passable to vehicles. The situation could have been worse
to the south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND
facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that
speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep
would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in
Exhibit B. The jeep must have been running quite fast. If the jeep had been braked at 25 kilometers
an hour, plaintiff's would not have been thrown against the windshield and they would not have
suffered their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and
for some reason or other it had to swerve suddenly to the right and had to climb over the ACCIDENT
MOUND, then plaintiff-husband had not exercised the diligence of a good father of a family to avoid
the accident. With the drizzle, he should not have run on dim lights, but should have put on his
regular lights which should have made him see the ACCIDENT MOUND in time. If he was running
on the outside lane at 25 kilometers an hour, even on dim lights, his failure to see the ACCIDENT
MOUND in time to brake the car was negligence on his part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did not see the ACCIDENT
MOUND in time, he would not have seen any warning sign either. He knew of the existence and
location of the ACCIDENT MOUND, having seen it many previous times. With ordinary precaution,
he should have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT
MOUND. 29

The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his
injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining
factors, and thereby precludes their right to recover damages. 30 The perils of the road were known to, hence appreciated
and assumed by, private respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even assuming arguendo that there was some alleged negligence on the part
of petitioner.
The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was
to inform and warn the public of the presence of excavations on the site. The private respondents already knew of the
presence of said excavations. It was not the lack of knowledge of these excavations which caused the jeep of
respondents to fall into the excavation but the unexplained sudden swerving of the jeep from the inside lane towards
the accident mound. As opined in some quarters, the omission to perform a duty, such as the placing of warning signs
on the site of the excavation, constitutes the proximate cause only when the doing of the said omitted act would have
prevented the injury. 31 It is basic that private respondents cannot charge PLDT for their injuries where their own failure to
exercise due and reasonable care was the cause thereof. It is both a societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection. Furthermore, respondent Antonio Esteban had the last clear chance or
opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson
Street, he passed on that street almost everyday and had knowledge of the presence and location of the excavations there. It
was his negligence that exposed him and his wife to danger, hence he is solely responsible for the consequences of his
imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was
insufficient evidence to prove any negligence on the part of PLDT. We have for consideration only the self-serving
testimony of respondent Antonio Esteban and the unverified photograph of merely a portion of the scene of the
accident. The absence of a police report of the incident and the non-submission of a medical report from the hospital
where private respondents were allegedly treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980
(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court
can only rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very
carefully evaluated, with defendant, as the party being charged, being given the benefit of any doubt.
Definitely without ascribing the same motivation to plaintiffs, another person could have deliberately
engineered a similar accident in the hope and expectation that the Court can grant him substantial
moral and exemplary damages from the big corporation that defendant is. The statement is made only
to stress the disadvantageous position of defendant which would have extreme difficulty in contesting
such person's claim. If there were no witness or record available from the police department of
Bacolod, defendant would not be able to determine for itself which of the conflicting testimonies of
plaintiffs is correct as to the report or non-report of the accident to the police department. 32
A person claiming damages for the negligence of another has the burden of proving the existence of such fault or
negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent
evidence. 33 Whosoever relies on negligence for his cause of action has the burden in the first instance of proving the
existence of the same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980, are
hereby SET ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and
AFFIRMED.
SO ORDERED.

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FELICIANO, J:
In the early morning of 15 November 1975 at about 1:30 a.m. private respondent Leonardo Dionisio was on his
way home he lived in 1214-B Zamora Street, Bangkal, Makati from a cocktails-and-dinner meeting with his
boss, the general manager of a marketing corporation. During the cocktails phase of the evening, Dionisio had taken

"a shot or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the intersection of General
Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down General
Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and
thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck, owned by and
registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of
General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio's car
was proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the street curb) in
such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any
so-called "early warning" reflector devices set anywhere near the dump truck, front or rear. The dump truck had
earlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of
his employer Phoenix, in view of work scheduled to be carried out early the following morning, Dionisio claimed that
he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck.
As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a
"nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that the
legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck
entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate
cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under the
influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it had
exercised due rare in the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the replacement
of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income for
plaintiff brought about the accident in controversy and which is the result of the negligence of the
defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the
unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man; mental
anguish, wounded feeling, serious anxiety, social humiliation, besmirched reputation, feeling of
economic insecurity, and the untold sorrows and frustration in life experienced by plaintiff and his
family since the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton disregard
of defendants to settle amicably this case with the plaintiff before the filing of this case in court for a
smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476 affirmed the
decision of the trial court but modified the award of damages to the following extent:
1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate court found the
plaintiff to have proved as actually sustained by him;

2. The award of P150,000.00 as loss of expected income was reduced

to P100,000.00,basically because Dionisio had voluntarily resigned his job such
that, in the opinion of the appellate court, his loss of income "was not solely
attributable to the accident in question;" and
3. The award of P100,000.00 as moral damages was held by the appellate court as
excessive and unconscionable and hence reduced to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees
and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in which the
dump truck was parked along General Lacuna Street on the basis of which both courts drew the inference that there
was negligence on the part of Carbonel, the dump truck driver, and that this negligence was the proximate cause of the
accident and Dionisio's injuries. We note, however, that both courts failed to pass upon the defense raised by Carbonel
and Phoenix that the true legal and proximate cause of the accident was not the way in which the dump truck had been
parked but rather the reckless way in which Dionisio had driven his car that night when he smashed into the dump
truck. The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was "in some way,
negligent" but apparently failed to see the relevance of Dionisio's negligence and made no further mention of it. We
have examined the record both before the trial court and the Intermediate Appellate Court and we find that both
parties had placed into the record sufficient evidence on the basis of which the trial court and the appellate court could
have and should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car
that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the
dump truck was parked, that negligence was merely a "passive and static condition" and that private respondent
Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he
sustained. The need to administer substantial justice as between the parties in this case, without having to remand it
back to the trial court after eleven years, compels us to address directly the contention put forward by the petitioners
and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear upon the liability,
or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew
pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the
collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with
the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d) whether
Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of Dionisio
immediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the testimony of
Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for emergency treatment
immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined them
along with the contents of pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce any curfew pass
during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years after the accident) issued
by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew
passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid curfew pass. This certification did not, however, specify
any pass serial number or date or period of effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew
pass during the night of the accident and that the preponderance of evidence shows that he did not have such a pass during that night. The relevance of possession or nonpossession of a curfew pass that night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and whether he had indeed purposely put
out his headlights before the accident, in order to avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a
valid curfew pass.

On the second issue whether or not Dionisio was speeding home that night both the trial court and the appellate
court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the accident
almost immediately after it occurred, the police station where he was based being barely 200 meters away. Patrolman
Cuyno testified that people who had gathered at the scene of the accident told him that Dionisio's car was "moving
fast" and did not have its headlights on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed
at 30 kilometers per hour and had just crossed the intersection of General Santos and General Lacuna Streets and had started
to accelerate when his headlights failed just before the collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag within any of the
recognized exceptions to the hearsay rule since the facts he testified to were not acquired by him through official
information and had not been given by the informants pursuant to any duty to do so. Private respondent's objection
fails to take account of the fact that the testimony of Patrolman Cuyno is admissible not under the official records
exception to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial evidence under this exception to the
hearsay rule consists of excited utterances made on the occasion of an occurrence or event sufficiently startling in nature so
as to render inoperative the normal reflective thought processes of the observer and hence made as a spontaneous reaction to
the occurrence or event, and not the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead of
night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who
happened to be around at that time. The testimony of Patrolman Cuyno was therefore admissible as part of the res
gestae and should have been considered by the trial court. Clearly, substantial weight should have been ascribed to
such testimony, even though it did not, as it could not, have purported to describe quantitatively the precise velocity at
winch Dionisio was travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights accidentally
malfunctioned, just moments before the accident. The Intermediate Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to why they did so. It is
the petitioners' contention that Dionisio purposely shut off his headlights even before he reached the intersection so as
not to be detected by the police in the police precinct which he (being a resident in the area) knew was not far away
from the intersection. We believe that the petitioners' theory is a more credible explanation than that offered by private
respondent Dionisio i.e., that he had his headlights on but that, at the crucial moment, these had in some mysterious
if convenient way malfunctioned and gone off, although he succeeded in switching his lights on again at "bright" split
seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence here
consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor at the
time he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition. 7This
testimony has to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two" of liquor before
dinner with his boss that night. We do not believe that this evidence is sufficient to show that Dionisio was so heavily under
the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. 8 There simply is
not enough evidence to show how much liquor he had in fact taken and the effects of that upon his physical faculties or
upon his judgment or mental alertness. We are also aware that "one shot or two" of hard liquor may affect different people
differently.
The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was
negligent the night of the accident. He was hurrying home that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and
thus did not see the dump truck that was parked askew and sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and
proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent manner in which the dump
truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonable relationship
between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries on the other hand,
is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and that
private respondent Dionisio's negligence was an "efficient intervening cause and that consequently Dionisio's
negligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of
Carbonel. We note that the petitioners' arguments are drawn from a reading of some of the older cases in various
jurisdictions in the United States but we are unable to persuade ourselves that these arguments have any validity for
our jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause" and "condition"
which the 'petitioners would have us adopt have already been "almost entirely discredited." Professors and Keeton
make this quite clear:
Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm
and the existing "conditions" upon which that cause operated. If the defendant has created only a
passive static condition which made the damage possible, the defendant is said not to be liable. But
so far as the fact of causation is concerned, in the sense of necessary antecedents which have played
an important part in producing the result it is quite impossible to distinguish between active forces
and passive situations, particularly since, as is invariably the case, the latter are the result of other
active forces which have gone before. The defendant who spills gasoline about the premises creates a
"condition," but the act may be culpable because of the danger of fire. When a spark ignites the
gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is
the very risk which the defendant has created, the defendant will not escape responsibility. Even the
lapse of a considerable time during which the "condition" remains static will not necessarily affect
liability; one who digs a trench in the highway may still be liable to another who fans into it a month
afterward. "Cause" and "condition" still find occasional mention in the decisions; but the distinction
is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case
where the forces set in operation by the defendant have come to rest in a position of apparent safety,
and some new force intervenes. But even in such cases, it is not the distinction between "cause" and
"condition" which is important but the nature of the risk and the character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was rather an
indispensable and efficient cause. The collision between the dump truck and the private respondent's car would in an
probability not have occurred had the dump truck not been parked askew without any warning lights or reflector
devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view,
Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the
accident, was not an efficient intervening or independent cause. What the Petitioners describe as an "intervening
cause" was no more than a foreseeable consequent manner which the truck driver had parked the dump truck. In other
words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to
impose upon them the very risk the truck driver had created. Dionisio's negligence was not of an independent and
overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump
truck and the accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor and
Keeton:

Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience
is reasonably to be anticipated or one which the defendant has reason to anticipate under the
particular circumstances, the defendant may be negligence among other reasons, because of failure
to guard against it; or the defendant may be negligent only for that reason. Thus one who sets a fire
may be required to foresee that an ordinary, usual and customary wind arising later wig spread it
beyond the defendant's own property, and therefore to take precautions to prevent that event. The
person who leaves the combustible or explosive material exposed in a public place may foresee the
risk of fire from some independent source. ... In all of these cases there is an intervening cause
combining with the defendant's conduct to produce the result and in each case the defendant's
negligence consists in failure to protect the plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and
important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass.
Foreseeable intervening forces are within the scope original risk, and hence of the defendant's
negligence. The courts are quite generally agreed that intervening causes which fall fairly in this
category will not supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity,
including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog or even
lightning; that one who leaves an obstruction on the road or a railroad track should foresee that a
vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the foreseeable negligence of
others. ... [The standard of reasonable conduct may require the defendant to protect the plaintiff
against 'that occasional negligence which is one of the ordinary incidents of human life, and
therefore to be anticipated.' Thus, a defendant who blocks the sidewalk and forces the plaintiff to
walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable when
the plaintiff is run down by a car, even though the car is negligently driven; and one who parks an
automobile on the highway without lights at night is not relieved of responsibility when another
negligently drives into it. ---10
We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate
cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may
recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the
Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is
that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of
avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear chance" must bear
his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction byPicart
vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the
common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the
defendant. 13 The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last
clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction
where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code
of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and
utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article
2179, the task of a court, in technical terms, is to determine whose negligence the plaintiff's or the defendant's
was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or

physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative
location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the
relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or
omission of each party and the character and gravity of the risks created by such act or omission for the rest of the
community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from
responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence
which had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission.
To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond
for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the
risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners'
pro-position must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix

16in
supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this
presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the
following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company
premises, is an affirmative showing of culpa in vigilando on the part of Phoenix.

Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio
on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the demands of substantial justice are satisfied by
allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who
shall be solidarity liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of course
entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the reduced award of damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to by 20%
of such amount. Costs against the petitioners.
SO ORDERED.

G.R. Nos. 103442-45 May 21, 1993

NATIONAL POWER CORPORATION, ET AL., petitioners,
vs.
THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents.
The Solicitor General for plaintiff-appellee.
Ponciano G. Hernandez for private respondents.

DAVIDE, JR., J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court urging this Court to set aside
the 19 August 1991 consolidated Decision of the Court of Appeals in CA.-G.R. CV Nos. 27290-93 1 which reversed
the Decision of Branch 5 of the then Court of First Instance (now Regional Trial Court) of Bulacan, and held petitioners
National Power Corporation (NPC) and Benjamin Chavez jointly and severally liable to the private respondents for actual
and moral damages, litigation expenses and attorney's fees.
This present controversy traces its beginnings to four (4) separate complaints 2 for damages filed against the NPC and
Benjamin Chavez before the trial court. The plaintiffs therein, now private respondents, sought to recover actual and other
damages for the loss of lives and the destruction to property caused by the inundation of the town of Norzagaray, Bulacan
on 26-27 October 1978. The flooding was purportedly caused by the negligent release by the defendants of water through
the spillways of the Angat Dam (Hydroelectric Plant). In said complaints, the plaintiffs alleged, inter alia, that: 1) defendant
NPC operated and maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop, Norzagaray, Bulacan; 2)
defendant Benjamin Chavez was the plant supervisor at the time of the incident in question; 3) despite the defendants'
knowledge, as early as 24 October 1978, of the impending entry of typhoon "Kading," they failed to exercise due diligence
in monitoring the water level at the dam; 4) when the said water level went beyond the maximum allowable limit at the
height of the typhoon, the defendants suddenly, negligently and recklessly opened three (3) of the dam's spillways, thereby
releasing a large amount of water which inundated the banks of the Angat River; and 5) as a consequence, members of the
household of the plaintiffs, together with their animals, drowned, and their properties were washed away in the evening of
26 October and the early hours of 27 October 1978. 3
In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care, diligence and prudence
in the operation and maintenance of the hydroelectric plant; 2) the NPC exercised the diligence of a good father in the
selection of its employees; 3) written notices were sent to the different municipalities of Bulacan warning the residents

therein about the impending release of a large volume of water with the onset of typhoon "Kading" and advise them to
take the necessary precautions; 4) the water released during the typhoon was needed to prevent the collapse of the
dam and avoid greater damage to people and property; 5) in spite of the precautions undertaken and the diligence
exercised, they could still not contain or control the flood that resulted and; 6) the damages incurred by the private
respondents were caused by a fortuitous event or force majeure and are in the nature and character of damnum absque
injuria. By way of special affirmative defense, the defendants averred that the NPC cannot be sued because it
performs a purely governmental function. 4
Upon motion of the defendants, a preliminary hearing on the special defense was conducted. As a result thereof, the
trial court dismissed the complaints as against the NPC on the ground that the provision of its charter allowing it to
sue and be sued does not contemplate actions based on tort. The parties do not, however, dispute the fact that this
Court overruled the trial court and ordered the reinstatement of the complaints as against the NPC. 5
Being closely interrelated, the cases were consolidated and trial thereafter ensued.
The lower court rendered its decision on 30 April 1990 dismissing the complaints "for lack of sufficient and credible
evidence." 6 Consequently, the private respondents seasonably appealed therefrom to the respondent Court which then
docketed the cases as CA-G.R. CV Nos. 27290-93.
In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed the appealed decision and awarded
damages in favor of the private respondents. The dispositive portion of the decision reads:
CONFORMABLY TO THE FOREGOING, the joint decision appealed from is hereby REVERSED
and SET ASIDE, and a new one is hereby rendered:
1. In Civil Case No. SM-950, ordering defendants-appellees to pay, jointly and severally, plaintiffsappellants, with legal interest from the date when this decision shall become final and executory, the
following:
A. Actual damages, to wit:
1) Gaudencio C. Rayo, Two Hundred Thirty One Thousand Two Hundred Sixty
Pesos (P231,260.00);
2) Bienvenido P. Pascual, Two Hundred Four Thousand Five Hundred Pesos
(P204.500.00);
3) Tomas Manuel, One Hundred Fifty Five Thousand Pesos (P155,000.00);
4) Pedro C. Bartolome, One Hundred Forty Seven Thousand Pesos (P147,000.00);.
5) Bernardino Cruz, One Hundred Forty Three Thousand Five Hundred Fifty Two
Pesos and Fifty Centavos (P143,552.50);
6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos (P57,500.00);
7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);
8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos (P29,080.00); and
B. Litigation expenses of Ten Thousand Pesos (P10,000.00);
2. In Civil case No. SM-951, ordering defendants-appellees to pay jointly and severally, plaintiffappellant, with legal interest from the date when this decision shall have become final and executory,
the following :

A. Actual damages of Five Hundred Twenty Thousand Pesos (P520,000.00);.

B. Moral damages of five hundred Thousand Pesos (P500,000.00); and.
C. Litigation expenses of Ten Thousand Pesos (P10,000.00);.
3. In Civil Case No. SM-953, ordering defendants-appellees to pay, jointly and severally, with legal
interest from the date when this decision shall have become final and executory;
A. Plaintiff-appellant Angel C. Torres:
1) Actual damages of One Hundred Ninety Nine Thousand One Hundred Twenty Pesos
(P199,120.00);
2) Moral Damages of One Hundred Fifty Thousand Pesos (P150,000.00);
B. Plaintiff-appellant Norberto Torres:
1) Actual damages of Fifty Thousand Pesos (P50,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Rodelio Joaquin:
1) Actual damages of One Hundred Thousand Pesos (P100,000.00);
2) Moral damages of One Hundred Thousand Pesos (P100,000.00); and
D. Plaintifsf-appellants litigation expenses of Ten Thousand Pesos (P10,000.00);
4. In Civil case No. SM-1247, ordering defendants-appellees to pay, jointly and severally, with legal
interest from the date when this decision shall have become final and executory :
A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo Lorenzo:
1) Actual damages of Two Hundred Fifty Six Thousand Six Hundred Pesos
(P256,600.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
B. Plaintiff-appellant Consolacion Guzman :
1) Actual damages of One Hundred forty Thousand Pesos (P140,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Virginia Guzman :
1) Actual damages of Two Hundred Five Hundred Twenty Pesos (205,520.00); and
D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (10,000.00).
In addition, in all the four (4) instant cases, ordering defendants-appellees to pay, jointly and
severally, plaintiffs-appellants attorney fees in an amount equivalent to 15% of the total amount
awarded.
No pronouncement as to costs. 7
The foregoing judgment is based on the public respondent's conclusion that the petitioners were guilty of:

. . . a patent gross and evident lack of foresight, imprudence and negligence . . . in the management
and operation of Angat Dam. The unholiness of the hour, the extent of the opening of the spillways,
And the magnitude of the water released, are all but products of defendants-appellees' headlessness,
slovenliness, and carelessness. The resulting flash flood and inundation of even areas (sic) one (1)
kilometer away from the Angat River bank would have been avoided had defendants-appellees
prepared the Angat Dam by maintaining in the first place, a water elevation which would allow room
for the expected torrential rains. 8
This conclusion, in turn, is anchored on its findings of fact, to wit:
As early as October 21, 1978, defendants-appellees knew of the impending onslaught of and
imminent danger posed by typhoon "Kading". For as alleged by defendants-appellees themselves, the
coming of said super typhoon was bannered by Bulletin Today, a newspaper of national circulation,
on October 25, 1978, as "Super Howler to hit R.P." The next day, October 26, 1978, said typhoon
once again merited a headline in said newspaper as "Kading's Big Blow expected this afternoon"
(Appellee's Brief, p. 6). Apart from the newspapers, defendants-appellees learned of typhoon
"Kading' through radio announcements (Civil Case No. SM-950, TSN, Benjamin Chavez, December
4, 1984, pp. 7-9).
Defendants-appellees doubly knew that the Angat Dam can safely hold a normal maximum
headwater elevation of 217 meters (Appellee's brief, p. 12; Civil Case No. SM-951, Exhibit "I-6";
Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247, Exhibit "G-6").
Yet, despite such knowledge, defendants-appellees maintained a reservoir water elevation even
beyond its maximum and safe level, thereby giving no sufficient allowance for the reservoir to
contain the rain water that will inevitably be brought by the coming typhoon.
On October 24, 1978, before typhoon "Kading" entered the Philippine area of responsibility, water
elevation ranged from 217.61 to 217.53, with very little opening of the spillways, ranging from 1/2 to
1 meter. On October 25, 1978, when typhoon "Kading" entered the Philippine area of responsibility,
and public storm signal number one was hoisted over Bulacan at 10:45 a.m., later raised to number
two at 4:45 p.m., and then to number three at 10:45 p.m., water elevation ranged from 217.47 to
217.57, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 26, 1978,
when public storm signal number three remained hoisted over Bulacan, the water elevation still
remained at its maximum level of 217.00 to 218.00 with very little opening of the spillways ranging
from 1/2 to 2 meters, until at or about midnight, the spillways were suddenly opened at 5 meters, then
increasing swiftly to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of October 27,
1978, releasing water at the rate of 4,500 cubic meters per second, more or less. On October 27,
1978, water elevation remained at a range of 218.30 to 217.05 (Civil Case No. SM-950, Exhibits "D"
and series, "L", "M", "N", and "O" and Exhibits "3" and "4"; Civil Case No. SM-951, Exhibits "H"
and "H-1"; Civil Case No. SM-953, Exhibits "I" and "I-1"; Civil Case No. SM 1247, Exhibits "F" and
"F-1").
xxx xxx xxx
From the mass of evidence extant in the record, We are convinced, and so hold that the flash flood on
October 27, 1978, was caused not by rain waters (sic), but by stored waters (sic) suddenly and
simultaneously released from the Angat Dam by defendants-appellees, particularly from midnight of
October
26,
1978
up
to
the
morning
hours
of
October
27,
1978. 9

The appellate court rejected the petitioners' defense that they had sent "early warning written notices" to the towns of
Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24 October 1978 which read:
TO ALL CONCERN (sic):
Please be informed that at present our reservoir (dam) is full and that we have been releasing water
intermittently for the past several days.
With the coming of typhoon "Rita" (Kading) we expect to release greater (sic) volume of water, if it
pass (sic) over our place.
In view of this kindly advise people residing along Angat River to keep alert and stay in safe places.
BENJAMIN L. CHAVEZ
Power Plant Superintendent 10
because:
Said notice was delivered to the "towns of Bulacan" on October 26, 1978 by defendants-appellees
driver, Leonardo Nepomuceno (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984,
pp. 7-11 and TSN, Leonardo Nepomuceno, March 7, 1985, pp. 10-12).
Said notice is ineffectual, insufficient and inadequate for purposes of the opening of the spillway
gates at midnight of October 26, 1978 and on October 27, 1978. It did not prepare or warn the
persons so served, for the volume of water to be released, which turned out to be of such magnitude,
that residents near or along the Angat River, even those one (1) kilometer away, should have been
advised to evacuate. Said notice, addressed "TO ALL CONCERN (sic)," was delivered to a
policeman (Civil Case No. SM-950, pp. 10-12 and Exhibit "2-A") for the municipality of Norzagaray.
Said notice was not thus addressed and delivered to the proper and responsible officials who could
have disseminated the warning to the residents directly affected. As for the municipality of Sta.
Maria, where plaintiffs-appellants in Civil Case No. SM-1246 reside, said notice does not appear to
have been served. 11
Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent rejected the petitioners' plea that the
incident in question was caused by force majeure and that they are, therefore, not liable to the private respondents for any
kind of damage such damage being in the nature of damnum absque injuria.
The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment filed by the public
respondents, 13 were denied by the public respondent in its Resolution of 27 December 1991. 14
Petitioners thus filed the instant petition on 21 February 1992.
After the Comment to the petition was filed by the private respondents and the Reply thereto was filed by the
petitioners, We gave due course to the petition on 17 June 1992 and directed the parties to submit their respective
Memoranda, 15 which they subsequently complied with.
The petitioners raised the following errors allegedly committed by the respondent Court :
I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING OF NAKPIL & SONS V.
COURT OF APPEALS AND HOLDING THAT PETITIONERS WERE GUILTY OF
NEGLIGENCE.
II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE WRITTEN NOTICES OF
WARNING ISSUED BY PETITIONERS WERE INSUFFICIENT.

III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE DAMAGE SUFFERED BY
PRIVATE RESPONDENTS WAS NOT DAMNUM ABSQUE INJURIA.
IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE COUNTERCLAIM OF
PETITIONERS FOR ATTORNEY'S FEES AND EXPENSES OF LITIGATION. 16
These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power Corporation, et al.,
vs. Court of Appeals, et al., 17 which this Court decided on 3 July 1992. The said case involved the very same incident
subject of the instant petition. In no uncertain terms, We declared therein that the proximate cause of the loss and damage
sustained by the plaintiffs therein who were similarly situated as the private respondents herein was the negligence of
the petitioners, and that the 24 October 1978 "early warning notice" supposedly sent to the affected municipalities, the same
notice involved in the case at bar, was insufficient. We thus cannot now rule otherwise not only because such a decision
binds this Court with respect to the cause of the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978
which resulted in the loss of lives and the destruction to property in both cases, but also because of the fact that on the basis
of its meticulous analysis and evaluation of the evidence adduced by the parties in the cases subject of CA-G.R. CV Nos.
27290-93, public respondent found as conclusively established that indeed, the petitioners were guilty of "patent gross and
evident lack of foresight, imprudence and negligence in the management and operation of Angat Dam," and that "the extent
of the opening of the spillways, and the magnitude of the water released, are all but products of defendants-appellees'
headlessness, slovenliness, and carelessness." 18 Its findings and conclusions are biding upon Us, there being no showing of
the existence of any of the exceptions to the general rule that findings of fact of the Court of Appeals are conclusive upon
this Court. 19 Elsewise stated, the challenged decision can stand on its own merits independently of Our decision in G.R.
No. 96410. In any event, We reiterate here in Our pronouncement in the latter case that Juan F. Nakpil & Sons vs. Court of
Appeals 20 is still good law as far as the concurrent liability of an obligor in the case of force majeure is concerned. In
theNakpil case, We held:
To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an
obligation due to an "act of God," the following must concur: (a) the cause of the breach of the
obligation must be independent of the will of the debtor; (b) the event must be either unforseeable or
unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill his
obligation in a moral manner; and (d) the debtor must be free from any participation in, or
aggravation of the injury to the creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v.
Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic of the Phil. v.
Luzon Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding
fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as
provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot
escape liability.
The principle embodied in the act of God doctrine strictly requires that the act must be one
occasioned exclusively by the violence of nature and all human agencies are to be excluded from
creating or entering into the cause of the mischief. When the effect, the cause of which is to be
considered, is found to be in part the result of the participation of man, whether it be from active
intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and
removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).
Thus it has been held that when the negligence of a person concurs with an act of God in producing a
loss, such person is not exempt from liability by showing that the immediate cause of the damage
was the act of God. To be exempt from liability for loss because of an act of God, he must be free
from any previous negligence or misconduct by which that loss or damage may have been

occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379;
Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657). 21
Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape liability for the loss or
damage sustained by private respondents since they, the petitioners, were guilty of negligence. The event then was not
occasioned exclusively by an act of God or force majeure; a human factor negligence or imprudence had
intervened. The effect then of the force majeure in question may be deemed to have, even if only partly, resulted from
the participation of man. Thus, the whole occurrence was thereby humanized, as it were, and removed from the laws
applicable to acts of God.
WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the Consolidated Decision of the
Court of Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with costs against the petitioners.
SO ORDERED.

G.R. No. 101683 February 23, 1995

LBC AIR CARGO, INC. FERNANDO M. YU and JAIME TANO, petitioners,
vs.
HON. COURT OF APPEALS, Fourth Division, SHERWIN MONTEROLA y OYON-OYON, represented by
PATROCENIA GRONDIANO y MONTEROLA, and PATROCENIA GRONDIANO y
MONTEROLA, respondents.

VITUG, J.:
In this petition for review, the application of the doctrines of "proximate cause" and "last clear chance" is, once again,
being put to test. The petition questions the decision of the Court of Appeals, dated 18 July 1991, which has reversed
that of the trial court.
The case arose from a vehicular collision which occurred at about 11:30 in the morning of 15 November 1987.
Rogelio Monterola, a licensed driver, was traveling on board his Suzuki motorcycle towards Mangagoy on the right
lane along a dusty national road in Bislig, Surigao del Sur. At about the same time, a cargo van of the LBC Air Cargo
Incorporated, driven by defendant Jaime Tano, Jr., was coming from the opposite direction on its way to the Bislig
Airport. On board were passengers Fernando Yu, Manager of LBC Air Cargo, and his son who was seated beside
Tano. When Tano was approaching the vicinity of the airport road entrance on his left, he saw two vehicles racing
against each other from the opposite direction. Tano stopped his vehicle and waited for the two racing vehicles to pass
by. The stirred cloud of dust made visibility extremely bad. Instead of waiting for the dust to settled, Tano started to
make a sharp left turn towards the airport road. When he was about to reach the center of the right lane, the
motorcycle driven by Monterola suddenly emerged from the dust and smashed head-on against the right side of the
LBC van. Monterola died from the severe injuries he sustained.
A criminal case for "homicide thru reckless imprudence" was filed against Tano. A civil suit was likewise instituted by
the heirs of deceased Monterola against Tano, along with Fernando Yu and LBC Air Cargo Incorporated, for the
recovery of damages. The two cases were tried jointly by the Regional Trial Court, Branch 29, of Surigao del Sur.
On 29 July 1990, the trial court dismissed both cases on the ground that the proximate cause of the "accident" was the
negligence of deceased Rogelio Monterola.
Private respondent appealed the dismissal of the civil case to the Court of Appeals. On 18 July 1991, the appellate
court reversed the court a quo. It held:
WHEREFORE, the judgment appealed from is REVERSED, and another one is hereby rendered
ordering the defendants Jaime Tano and LBC Air Cargo, Inc. to jointly and severally pay the plaintiff
Patrocinia Monterola the following amounts:
To SHERWIN MONTEROLA:
1. Indemnity for the death of
Rogelio Monterola P50,000.00
2. For Moral damages P20,000.00
To PATROCINIA GRONDIANO Y MONTEROLA:
3. Actual Damages P7,361.00
4. Hospitals & Burial Expenses 15,000.00

5. Attorneys' Fees and expenses

of Litigation 10,000.00
Plus the costs.
Actual payment of the aforementioned amounts should however be reduced to twenty (20%)
percent. 1
In the instant petition for review, petitioners contend that
1. The Court of Appeals erred in finding that Jaime Tano, Jr. was negligent in the driving of his
vehicle and in failing to give a signal to approaching vehicles of his intention to make a left turn.
2. The Court of Appeals erred in not finding that the proximate cause of the accident was the victim's
negligence in the driving of his motorcycle in a very fast speed and thus hitting the petitioner's cargo
van. 2
The issues raised are thus essentially factual. The intrinsic merit of, as well as cogency in, the detailed analyses made
by the Court of Appeals in arriving at its findings is at once apparent. Said the appellate court:
That visibility was poor when Jaime Tano made a left turn was admitted by the latter.
Q When these two vehicles passed by your parked vehicle, as you said, there were
clouds of dust, did I get you right?
A Yes sir, the road was dusty.
Q So much so that you could no longer see the vehicles from the opposite direction
following these vehicles?
A It is not clear, sir, so I even turned on my left signal and the headlight.
Q What do you mean by it was not clear, you could not see the incoming vehicles?
A I could not see because of the cloud of dust.
Q And it was at this juncture, when you were to follow your theory, when you
started your LBC van again and swerved to the left leading to the Bislig airport?
A I did not enter immediately the airport, I waited the dust to clear a little before I
drove.
xxx xxx xxx
Q In other words when you said that it was slightly clear, you would like to tell the
Honorable Court that you could only clearly see big vehicles . . . but not small
vehicles like a motorcycle?
A I could see clearly big vehicles but not small vehicles like a motorcycle.
Q Like the motorcycle of Rogelio Monterola?
A Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp. 26-30) (p. 15,
Appellant's brief).
Tano should not have made a left turn under the conditions admitted by him. Under the Land
Transportation and Traffic Code, the driver of any vehicle upon a highway, before starting, stopping

or turning from a direct line, is called upon to first see that such movement can be made in safety, and
whenever the operation of any other vehicle approaching may be affected by such movement, shall
give a signal plainly visible to the driver of such other vehicles of the intention to make such
movement (Sec. 44, R.A. 4136, as amended). This means that before a driver turns from a direct line,
in this case to the left, the driver must first see to it that there are no approaching vehicles and, if
there are, to make the turn only if it can be made in safety, or at the very least give a signal that is
plainly visible to the driver of such other vehicle. Tano did neither in this case, for he recklessly made
a left turn even as visibility was still very poor, and thus failed to see the approaching motorcycle and
warn the latter, of his intention to make a left turn. This is plain and simple negligence.
In thus making the left turn, he placed his vehicle directly at the path of the motorcycle which,
unaware of Tano's intention to make a left turn, smashed at Tano's vehicle. It was Tano's negligence
that created the risk or the condition of danger that set into operation the event that led to the
smashedup and untimely death of Rogelio Monterola.
Rogelio Monterola's motorcycle would not have hit the cargo van had Tano, in operating it, not
recklessly turned left when visibility was still poor, and instead observed the direct line of the Land
Transportation Code that before doing so, he should first see to it that such movement can be made in
safety, and that whenever any other vehicle approaching may be affected by such movement, should
give a signal plainly visible to the driver of such other vehicle of the intention to make such
movement.
That Rogelio Monterola was running fast despite poor visibility as evidenced by the magnitude of the
damage to the vehicles is no defense. His negligence would at most be contributory (Article 2179,
N.C.C.). Having negligently created the condition of danger, defendants may not avoid liability by
pointing to the negligence of the former.
xxx xxx xxx
Tano's proven negligence created a presumption of negligence on the part of his employer, the LBC
Air Cargo Corporation, in supervising its employees properly and adequately (Phoenix Construction,
Inc. vs. Intermediate Appellate Court, supra), which may only be destroyed by proof of due diligence
in the selection and supervision of his employees to prevent the damage (Article 2180, N.C.C.). No
such defense was interposed by defendants in their answer.
We, however, fail to see Fernando Yu's liability as Manager of LBC-Mangagoy Branch Office, there
being no employer-employee relationship between him and Jaime Tano who is a driver of the LBC
Air Cargo Inc. It was held in Philippine Rabbit Bus Lines Inc. et al. vs. Phil. American
Forwarders, Inc., 63 SCRA 231, that the term "Manager" in Article 2180 is used in the sense of
"employer." Hence, no tortuous or quasi-delictual liability can be fastened on Fernando Yu as branch
manager of LBC Air Cargo Inc.
Now for the amount of damages. Aside from the indemnity for death which has been pegged at
P50,000.00 (Resolution En Banc, August 30, 1990, cited in People vs. Sazon, 189 SCRA 700), the
evidence disclose that as a result of the accident, Rogelio Monterola's motorcycle was damaged, the
repair cost of which amounted to P7,361.00 (Exh. E-1), for hospitalization, wake and burial
expenses, plaintiff spent P15,000.00. There is likewise no question that by reason of Rogelio
Monterola's untimely death, his only child 14 years old Sherwin Monterola, suffered mental anguish,
fright, serious anxiety, wounded feelings and moral shock that entitles him to moral damages which
we hereby fix at P20,000.00. Because of defendants' refusal to indemnify the plaintiff for his father's

death, the latter was compelled to litigate and engage the services of counsel. He is therefore entitled
to an additional amount of P10,000.00 for attorney's fees and expenses of litigation.
Considering, however, the contributory negligence of Rogelio Monterola in driving at a fast clip
despite the fact that the road was dusty, we reduce the aggregate amount of damages to which the
plaintiff is entitled by twenty per cent (Phoenix Construction Inc. vs. Intermediate Appellate
Court, Supra). 3
From every indication, the proximate cause of the accident was the negligence of Tano who, despite extremely poor
visibility, hastily executed a left turn (towards the Bislig airport road entrance) without first waiting for the dust to
settle. It was this negligent act of Tano, which had placed his vehicle (LBC van) directly on the path of the motorcycle
coming from the opposite direction, that almost instantaneously caused the collision to occur. Simple prudence
required him not to attempt to cross the other lane until after it would have been safe from and clear of any oncoming
vehicle.
Petitioners poorly invoke the doctrine of "last clear chance" (also referred to, at times, as "supervening negligence" or
as "discovered peril"). The doctrine, in essence, is to the effect that where both parties are negligent, but the negligent
act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or
negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending
harm and failed to do so is chargeable with the consequences thereof (see Picart vs. Smith, 37 Phil. 809). Stated
differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of
damages for supervening negligence of, or bar a defense against the liability sought by, another if the latter, who had
the last fair chance, could have avoided the impending harm by the exercise of due diligence (Pantranco North
Express, Inc. vs. Baesa, 179 SCRA 384; Glan People's Lumber and Hardware vs. Intermediate Appellate Court, 173
SCRA 464).
In the case at bench, the victim was traveling along the lane where he was rightly supposed to be. The incident
occurred in an instant. No appreciable time had elapsed, from the moment Tano swerved to his left to the actual
impact; that could have afforded the victim a last clear opportunity to avoid the collision.
It is true however, that the deceased was not all that free from negligence in evidently speeding too closely behind the
vehicle he was following. We, therefore, agree with the appellate court that there indeed was contributory negligence
on the victim's part that could warrant a mitigation of petitioners liability for damages.
WHEREFORE, the appealed decision is AFFIRMED. Costs against petitioners.

G.R. No. L-12986

March 31, 1966

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

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of the Court
of First Instance of Manila dismissing petitioners' second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon of
March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue, Manila.
It started while gasoline was being hosed from a tank truck into the underground storage, right at the opening of the
receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several neighboring houses,
including the personal properties and effects inside them. Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its
agent in charge of operation. Negligence on the part of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had
exercised due care in the premises and with respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila Police and
Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of the first two
reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was
transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex
Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown
Filipino lighted a cigarette and threw the burning match stick near the main valve of the said
underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in
pulling off the gasoline hose connecting the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose from which the gasoline was spouting. It
burned the truck and the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola and
cigarette stand, the complainants furnished this Office a copy of a photograph taken during the fire and which
is submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a rack
which according to information gathered in the neighborhood contained cigarettes and matches, installed
between the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the
gasoline station and what the chief of the fire department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. This ruling
is now assigned as error. It is contended: first, that said reports were admitted by the trial court without objection on
the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa) which appears signed by a
Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness but respondents waived their
right to cross-examine him although they had the opportunity to do so; and thirdly, that in any event the said reports
are admissible as an exception to the hearsay rule under section 35 of Rule 123, now Rule 130.

The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp. 167-170)
shows that the reports in question, when offered as evidence, were objected to by counsel for each of respondents on
the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the court's
resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission of the others, including the
disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did not
testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he was one of
those who investigated "the location of the fire and, if possible, gather witnesses as to the occurrence, and that he
brought the report with him. There was nothing, therefore, on which he need be cross-examined; and the contents of
the report, as to which he did not testify, did not thereby become competent evidence. And even if he had testified, his
testimony would still have been objectionable as far as information gathered by him from third persons was
concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on their
contents, fall within the scope of section 35, Rule 123, which provides that "entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public
officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that
the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired
by him personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in the
reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers who
conducted the investigation. Was knowledge of such facts, however, acquired by them through official information?
As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo Medina, referred to as
an employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline
was being transferred at the time to the underground tank of the station; and to respondent Mateo Boquiren, who could
not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their statements as "official
information" acquired by the officers who prepared the reports, the persons who made the statements not only must
have personal knowledge of the facts stated but must have the duty to give such statements for record. 1
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquired by
the reporting officers through official information, not having been given by the informants pursuant to any duty to do
so.
The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the appellate court
refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in the Philippines, there
seems to he nothing definite," and that while the rules do not prohibit its adoption in appropriate cases, "in the case at
bar, however, we find no practical use for such doctrine." The question deserves more than such summary dismissal.
The doctrine has actually been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and
Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the Court of Appeals was
penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without
any wind blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power
and Development Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of the
plaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried
by the wire and was knocked unconscious to the ground. The electric charge coursed through his body and
caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some parts and
causing intense pain and wounds that were not completely healed when the case was tried on June 18, 1947,
over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of
negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense.
While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the
negligence of the defendant, it is also a recognized principal that "where the thing which caused injury,
without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in
the ordinary course of things does not occur if he having such control use proper care, it affords reasonable
evidence, in the absence of the explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San
Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res ipsa
loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on the highway, and the electric wire was under the sole
control of defendant company. In the ordinary course of events, electric wires do not part suddenly in fair
weather and injure people, unless they are subjected to unusual strain and stress or there are defects in their
installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse windows
to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299,
the leading case that established that rule). Consequently, in the absence of contributory negligence (which is
admittedly not present), the fact that the wire snapped suffices to raise a reasonable presumption of
negligence in its installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if there
are any facts inconsistent with negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme Court, but
we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the case at bar. Gasoline
is a highly combustible material, in the storage and sale of which extreme care must be taken. On the other hand, fire
is not considered a fortuitous event, as it arises almost invariably from some act of man. A case strikingly similar to
the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the
Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease,
while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum Corporation,
to the underground tank of the station, a fire started with resulting damages to the building owned by Jones.
Alleging that the damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporation
for the recovery of that amount. The judge of the district court, after hearing the testimony, concluded that
plaintiff was entitled to a recovery and rendered judgment in his favor for $427.82. The Court of Appeals for
the First Circuit reversed this judgment, on the ground the testimony failed to show with reasonable certainty

any negligence on the part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiff
applied to this Court for a Writ of Review which was granted, and the case is now before us for decision.
1wph1.t

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

Plaintiff's petition contains two distinct charges of negligence one relating to the cause of the fire and the
other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placed on
the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the record
that the filling station and the tank truck were under the control of the defendant and operated by its agents or
employees. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in the
underground tank attached to the filling station while it was being filled from the tank truck and while both
the tank and the truck were in charge of and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and escaping
gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause of
the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur.
There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under the management of defendant or
his servants and the accident is such as in the ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last
resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.:
Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So.
731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v.
Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its
appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to and
burned the neighboring houses. The persons who knew or could have known how the fire started were appellees and
their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident
happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the following
appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot
approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within a
very busy business district near the Obrero Market, a railroad crossing and very thickly populated
neighborhood where a great number of people mill around t
until
gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls south and west adjoining
the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping over it in case
of fire.
Records show that there have been two cases of fire which caused not only material damages but desperation
and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operator as
a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to the possible
outbreak of fire at this already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of his
own personal observation of the facts reported, may properly be considered as an exception to the hearsay rule. These
facts, descriptive of the location and objective circumstances surrounding the operation of the gasoline station in
question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on their face they
called for more stringent measures of caution than those which would satisfy the standard of due diligence under
ordinary circumstances. There is no more eloquent demonstration of this than the statement of Leandro Flores before
the police investigator. Flores was the driver of the gasoline tank wagon who, alone and without assistance, was
transferring the contents thereof into the underground storage when the fire broke out. He said: "Before loading the
underground tank there were no people, but while the loading was going on, there were people who went to drink
coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the underground tank." He added
that when the tank was almost filled he went to the tank truck to close the valve, and while he had his back turned to
the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the flames
from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it consisted
merely of galvanized iron sheets, which would predictably crumple and melt when subjected to intense heat.
Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with respect to the spread
thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "the fire
was caused through the acts of a stranger who, without authority, or permission of answering defendant, passed
through the gasoline station and negligently threw a lighted match in the premises." No evidence on this point was
adduced, but assuming the allegation to be true certainly any unfavorable inference from the admission may be
taken against Boquiren it does not extenuate his negligence. A decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule which we find acceptable here. "It is the rule that those who
distribute a dangerous article or agent, owe a degree of protection to the public proportionate to and commensurate
with a danger involved ... we think it is the generally accepted rule as applied to torts that 'if the effects of the actor's
negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and
substantially simultaneous operation of the effects of a third person's innocent, tortious or criminal act is also a
substantial factor in bringing about the harm, does not protect the actor from liability.' (Restatement of the Law of
Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen and unexpected cause, is not
sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W.
2nd 442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue depends on
whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of Caltex. This
question, in the light of the facts not controverted, is one of law and hence may be passed upon by this Court. These
facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire Caltex owned the
gasoline station and all the equipment therein; (3) Caltex exercised control over Boquiren in the management of the
state; (4) the delivery truck used in delivering gasoline to the station had the name of CALTEX painted on it; and (5)
the license to store gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers to
remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in his
employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true
that Boquiren later on amended his answer, and that among the changes was one to the effect that he was not acting as
agent of Caltex. But then again, in his motion to dismiss appellants' second amended complaint the ground alleged
was that it stated no cause of action since under the allegations thereof he was merely acting as agent of Caltex, such
that he could not have incurred personal liability. A motion to dismiss on this ground is deemed to be an admission of
the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business
conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present any
contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must have been
one in existence at that time. Instead, what was presented was a license agreement manifestly tailored for purposes of
this case, since it was entered into shortly before the expiration of the one-year period it was intended to operate. This
so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of January
1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite significant,
and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility with respect to the
fire, as shown by the clause that Caltex "shall not be liable for any injury to person or property while in the property
herein licensed, it being understood and agreed that LICENSEE (Boquiren) is not an employee, representative or
agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an independent contractor.
Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the premises and all
the equipment therein. He could sell only Caltex Products. Maintenance of the station and its equipment was subject
to the approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights as licensee without
the consent of Caltex. The license agreement was supposed to be from January 1, 1948 to December 31, 1948, and
thereafter until terminated by Caltex upon two days prior written notice. Caltex could at any time cancel and terminate
the agreement in case Boquiren ceased to sell Caltex products, or did not conduct the business with due diligence, in
the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but not to Boquiren.
These provisions of the contract show the extent of the control of Caltex over Boquiren. The control was such that the
latter was virtually an employee of the former.
Taking into consideration the fact that the operator owed his position to the company and the latter could
remove him or terminate his services at will; that the service station belonged to the company and bore its
tradename and the operator sold only the products of the company; that the equipment used by the operator
belonged to the company and were just loaned to the operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the operator and conducted periodic inspection of
the company's gasoline and service station; that the price of the products sold by the operator was fixed by the
company and not by the operator; and that the receipts signed by the operator indicated that he was a mere

agent, the finding of the Court of Appeals that the operator was an agent of the company and not an
independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon the name or title given
it by the contracting parties, should thereby a controversy as to what they really had intended to enter into, but
the way the contracting parties do or perform their respective obligations stipulated or agreed upon may be
shown and inquired into, and should such performance conflict with the name or title given the contract by
the parties, the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens'
Insurance Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the apparent relationship of employer
and independent contractor, and of avoiding liability for the negligence of the employees about the station;
but the company was not satisfied to allow such relationship to exist. The evidence shows that it immediately
assumed control, and proceeded to direct the method by which the work contracted for should be performed.
By reserving the right to terminate the contract at will, it retained the means of compelling submission to its
orders. Having elected to assume control and to direct the means and methods by which the work has to be
performed, it must be held liable for the negligence of those performing service under its direction. We think
the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d,
183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were presented
to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground that
Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the insured, was
not yet in effect when the loss took place. However, regardless of the silence of the law on this point at that time, the
amount that should be recovered be measured by the damages actually suffered, otherwise the principle prohibiting
unjust enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the
lower court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was worth P4,000.00. We agree that the court erred, since it is
of common knowledge that the assessment for taxation purposes is not an accurate gauge of fair market value, and in
this case should not prevail over positive evidence of such value. The heirs of Ong are therefore entitled to
P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to appellants,
and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest from the filing of
the complaint, and costs.

G.R. No. L-52732 August 29, 1988

F.F. CRUZ and CO., INC., petitioner,

vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by his wife LUZ ALMONTE MABLE and
children DOMING, LEONIDAS, LIGAYA, ELENA, GREGORIO, JR., SALOME, ANTONIO, and
BERNARDO all surnamed MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.

CORTES, J.:
This petition to review the decision of the Court of Appeals puts in issue the application of the common law doctrine
of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent to the residence of private
respondents. Sometime in August 1971, private respondent Gregorio Mable first approached Eric Cruz, petitioner's
plant manager, to request that a firewall be constructed between the shop and private respondents' residence. The
request was repeated several times but they fell on deaf ears. In the early morning of September 6, 1974, fire broke out
in petitioner's shop. Petitioner's employees, who slept in the shop premises, tried to put out the fire, but their efforts
proved futile. The fire spread to private respondents' house. Both the shop and the house were razed to the ground.
The cause of the conflagration was never discovered. The National Bureau of Investigation found specimens from the
burned structures negative for the presence of inflammable substances.
Subsequently, private respondents collected P35,000.00 on the insurance on their house and the contents thereof.

On January 23, 1975, private respondents filed an action for damages against petitioner, praying for a judgment in
their favor awarding P150,000.00 as actual damages, P50,000.00 as moral damages, P25,000.00 as exemplary
damages, P20,000.00 as attorney's fees and costs. The Court of First Instance held for private respondents:
WHEREFORE, the Court hereby renders judgment, in favor of plaintiffs, and against the defendant:
1. Ordering the defendant to pay to the plaintiffs the amount of P80,000.00 for damages suffered by
said plaintiffs for the loss of their house, with interest of 6% from the date of the filing of the
Complaint on January 23, 1975, until fully paid;
2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00 for the loss of plaintiffs'
furnitures, religious images, silverwares, chinawares, jewelries, books, kitchen utensils, clothing and
other valuables, with interest of 6% from date of the filing of the Complaint on January 23, 1975,
until fully paid;
3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 as moral damages, P2,000.00
as exemplary damages, and P5,000.00 as and by way of attorney's fees;
4. With costs against the defendant;
5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision, pp. 1-2; Rollo, pp. 29-30.]
On appeal, the Court of Appeals, in a decision promulgated on November 19, 1979, affirmed the decision of the trial
court but reduced the award of damages:
WHEREFORE, the decision declaring the defendants liable is affirmed. The damages to be awarded
to plaintiff should be reduced to P70,000.00 for the house and P50,000.00 for the furniture and other
fixtures with legal interest from the date of the filing of the complaint until full payment thereof. [CA
Decision, p. 7; Rollo, p. 35.]
A motion for reconsideration was filed on December 3, 1979 but was denied in a resolution dated February 18, 1980.
Hence, petitioner filed the instant petition for review on February 22, 1980. After the comment and reply were filed,
the Court resolved to deny the petition for lack of merit on June 11, 1980.
However, petitioner filed a motion for reconsideration, which was granted, and the petition was given due course on
September 12, 1980. After the parties filed their memoranda, the case was submitted for decision on January 21, 1981.
Petitioner contends that the Court of Appeals erred:
1. In not deducting the sum of P35,000.00, which private respondents recovered on the insurance on their house, from
the award of damages.
2. In awarding excessive and/or unproved damages.
3. In applying the doctrine of res ipsa loquitur to the facts of the instant case.
The pivotal issue in this case is the applicability of the common law doctrine of res ipsa loquitur, the issue of damages
being merely consequential. In view thereof, the errors assigned by petitioner shall be discussed in the reverse order.
1. The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to, may be stated as
follows:
Where the thing which caused the injury complained of is shown to be under the management of the
defendant or his servants and the accident is such as in the ordinary course of things does not happen
if those who have its management or control use proper care, it affords reasonable evidence, in the

absence of explanation by the defendant, that the accident arose from want of care. [Africa v. Caltex
(Phil.), Inc., G.R. No. L-12986, March 31, 1966, 16 SCRA 448.]
Thus, in Africa, supra, where fire broke out in a Caltex service station while gasoline from a tank truck was being
unloaded into an underground storage tank through a hose and the fire spread to and burned neighboring houses, this
Court, applying the doctrine of res ipsa loquitur, adjudged Caltex liable for the loss.
The facts of the case likewise call for the application of the doctrine, considering that in the normal course of
operations of a furniture manufacturing shop, combustible material such as wood chips, sawdust, paint, varnish and
fuel and lubricants for machinery may be found thereon.
It must also be noted that negligence or want of care on the part of petitioner or its employees was not merely
presumed. The Court of Appeals found that petitioner failed to construct a firewall between its shop and the residence
of private respondents as required by a city ordinance; that the fire could have been caused by a heated motor or a lit
cigarette; that gasoline and alcohol were used and stored in the shop; and that workers sometimes smoked inside the
shop [CA Decision, p. 5; Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct a firewall in accordance with
city ordinances would suffice to support a finding of negligence.
Even then the fire possibly would not have spread to the neighboring houses were it not for another
negligent omission on the part of defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters
high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably
crumble and melt when subjected to intense heat. Defendant's negligence, therefore, was not only
with respect to the cause of the fire but also with respect to the spread thereof to the neighboring
houses.[Africa v. Caltex (Phil.), Inc., supra; Emphasis supplied.]
In the instant case, with more reason should petitioner be found guilty of negligence since it had failed to construct a
firewall between its property and private respondents' residence which sufficiently complies with the pertinent city
ordinances. The failure to comply with an ordinance providing for safety regulations had been ruled by the Court as an
act of negligence [Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.]
The Court of Appeals, therefore, had more than adequate basis to find petitioner liable for the loss sustained by private
respondents.
2. Since the amount of the loss sustained by private respondents constitutes a finding of fact, such finding by the
Court of Appeals should not be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v. Court of Appeals, G.R. No.
L-23882, February 17, 1968, 22 SCRA 559], more so when there is no showing of arbitrariness.
In the instant case, both the CFI and the Court of Appeals were in agreement as to the value of private respondents'
furniture and fixtures and personal effects lost in the fire (i.e. P50,000.00). With regard to the house, the Court of
Appeals reduced the award to P70,000.00 from P80,000.00. Such cannot be categorized as arbitrary considering that
the evidence shows that the house was built in 1951 for P40,000.00 and, according to private respondents, its
reconstruction would cost P246,000.00. Considering the appreciation in value of real estate and the diminution of the
real value of the peso, the valuation of the house at P70,000.00 at the time it was razed cannot be said to be excessive.
3. While this Court finds that petitioner is liable for damages to private respondents as found by the Court of Appeals,
the fact that private respondents have been indemnified by their insurer in the amount of P35,000.00 for the damage
caused to their house and its contents has not escaped the attention of the Court. Hence, the Court holds that in
accordance with Article 2207 of the Civil Code the amount of P35,000.00 should be deducted from the amount
awarded as damages. Said article provides:

Art. 2207. If the plaintiffs property has been insured, and he has received indemnity from the
insurance company for the injury or loss arising out of the wrong or breach of contract complained
of, the insurance company is subrogated to the rights of the insured against the wrongdoer or the
person who violated the contract. If the amount paid by the insurance company does not fully cover
the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person
causing the loss or injury. (Emphasis supplied.]
The law is clear and needs no interpretation. Having been indemnified by their insurer, private respondents are only
entitled to recover the deficiency from petitioner.
On the other hand, the insurer, if it is so minded, may seek reimbursement of the amount it indemnified private
respondents from petitioner. This is the essence of its right to be subrogated to the rights of the insured, as expressly
provided in Article 2207. Upon payment of the loss incurred by the insured, the insurer is entitled to be
subrogated pro tanto to any right of action which the insured may have against the third person whose negligence or
wrongful act caused the loss [Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976,
70 SCRA 323.]
Under Article 2207, the real party in interest with regard to the indemnity received by the insured is the insurer [Phil.
Air Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the insurer should exercise the rights of
the insured to which it had been subrogated lies solely within the former's sound discretion. Since the insurer is not a
party to the case, its identity is not of record and no claim is made on its behalf, the private respondent's insurer has to
claim his right to reimbursement of the P35,000.00 paid to the insured.
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is hereby AFFIRMED with the
following modifications as to the damages awarded for the loss of private respondents' house, considering their receipt
of P35,000.00 from their insurer: (1) the damages awarded for the loss of the house is reduced to P35,000.00; and (2)
the right of the insurer to subrogation and thus seek reimbursement from petitioner for the P35,000.00 it had paid
private respondents is recognized.
SO ORDERED.

G.R. No. 118231 July 5, 1996

DR.
VICTORIA
L.
BATIQUIN
and
ALLAN
BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.

DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust,
men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already provided:
"If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye
socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand." 2 Subsequently,
Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow that method of treatment which according
to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and
mischievous. . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art,
respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the
primary objective of the medical profession if the preservation of life and maintenance of the health of the people. 4
Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he
must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the
ancients, neither will it and this Court, as this case would show, let the act go uncondemned.
The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which
reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil
Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City
from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg.
Head of the Department of Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's
private patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who
was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some
student nurses performed a simple caesarean section on Mrs. Villegas at the Negros Oriental
Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at
about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27,
1988 during which period of confinement she was regularly visited by Dr. Batiquin. On September

28, 1988 Mrs. Villegas checked out of the Hospital. . . and on that same day she paid Dr. Batiquin,
thru the latter's secretary, the amount of P1,500.00 as "professional fee". . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of
being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's
polyclinic who prescribed for her certain medicines. . . which she had been taking up to December,
1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31,
1988. . . certifying to her physical fitness to return to her work on November 7, 1988. So, on the
second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon,
Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the
medications administered by Dr. Batiquin. When the pains became unbearable and she was rapidly
losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on
January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy
Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing
fast. Upon examination she felt an abdominal mass one finger below the umbilicus which she
suspected to be either a tumor of the uterus or an ovarian cyst, either of which could be cancerous.
She had an x-ray taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of
Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The
results of all those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another
surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an
ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus,
and a piece of rubber material on the right side of the uterus embedded on [sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body"
looked like a piece of a "rubber glove". . . and which is [ sic] also "rubber-drain like". . . . It could
have been a torn section of a surgeon's gloves or could have come from other sources. And this
foreign body was the cause of the infection of the ovaries and consequently of all the discomfort
suffered by Mrs. Villegas after her delivery on September 21, 1988. 7
The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and
although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination, 8 it was not
mentioned in the pathologist's Surgical Pathology Report. 9
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, 10 a
Progress Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's Discharge Summary. 14 The trial court,
however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons who
prepared them are deceased or unable to testify on the facts therein stated. . . . Except for the Medical Certificate (Exhibit
"F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature
on some of them to express her agreement thereto. . . ." 15 The trial court also refused to give weight to Dr. Kho's testimony
regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge" thereof, 16 as could be gleaned
from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that
goes with the tissues but unluckily I don't know where the rubber was. 17

The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of
rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." 18 This statement, the trial court
noted, was never denied nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending "rubber" (1) that it was
sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away
as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions
serve only to weaken their claim against Defendant Batiquin. 19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber
was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial court,
holding:
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The
trial court itself had narrated what happened to appellant Flotilde after the caesarean operation made
by appellee doctor. . . . After the second operation, appellant Flotilde became well and healthy.
Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her
abdomen. Both appellant; testified that after the operation made by appellee doctor, they did not go to
any other doctor until they finally decided to see another doctor in January, 1989 when she was not
getting any better under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin admitted on the
witness stand that she alone decided when to close the operating area; that she examined the portion
she operated on before closing the same. . . Had she exercised due diligence, appellee Dr. Batiquin
would have found the rubber and removed it before closing the operating area. 20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A)
plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G
and G-2)] for the second operation that saved her life.
For the miseries appellants endured for more than three (3) months, due to the negligence of appellee
Dr. Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages in
the amount of P20,000.00 and attorney's fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were
removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs
were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is
that the rubber left by appellee caused infection, placed the life of appellant Flotilde in jeopardy and
caused appellant fear, worry and anxiety. . . .
WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and
SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffsappellants the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral
damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus
the costs of litigation.
SO ORDERED. 21

From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committed grave
abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its
discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with
contradictions and falsities.
The private respondents commented that the petition raised only questions of fact, which were not proper for review
by this Court.
While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions,
among which are when the factual findings of the trial court and the appellate court conflict, when the appealed
decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts. 22
After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's
testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. Kho's
testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would
turn
out
to
be
a
medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know where the rubber
was. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of
the piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trial
court should have likewise considered the other portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen,
there was an ovarian cyst on the left and side and there was also an ovarian cyst on
the right which, on opening up or freeing it up from the uterus, turned out to be pus.
Both ovaries turned out. . . to have pus. And then, cleaning up the uterus, at the back
of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber,
we
found
a
[piece
of]
rubber
on
the
right
side. 24
We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho
saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu
City for examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention of a piece of
rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other
than first-hand knowledge for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it. 26

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim
on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a
piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the
same is admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's statement
cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And even if we were to
doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not
justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas's abdomen. On this score,
it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with
respect to other facts. And it has been aptly said that even when a witness is found to have deliberately falsified in some
material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such portions thereof
deemed worthy of belief may be credited. 29
It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation, 30 and that there was neither any tear on Dr. Batiquin's gloves after the operation
nor blood smears on her hands upon removing her gloves. 31 Moreover, the trial court pointed out that the absence of a
rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent
Villegas.32 But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative
testimonies. Well-settled is the rule that positive testimony is stronger than negative testimony. 33 Of course, as the
petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the said
testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her
turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her
trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical of the lack of care
with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting our
appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her findings, but it can also
be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an
eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to
have anticipated. 35
Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was
indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation
of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be
under the management of the defendant, and the accident is such as in the ordinary course of things
does not happen in those who have the management use proper care, it affords reasonable evidence,
in the absence of an explanation by the defendant, that the accident arose from want of care." Or
asBlack's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference
that defendant was negligent, which arises upon proof that [the] instrumentality
causing injury was in defendant's exclusive control, and that the accident was one
which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a]
rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred
from [the] mere fact that [the] accident happened provided [the] character of [the]
accident and circumstances attending it lead reasonably to belief that in [the]

absence of negligence it would not have occurred and that thing which caused injury
is shown to have been under [the] management and control of [the] alleged
wrongdoer.
.
.
.
Under
[this]
doctrine
. . . the happening of an injury permits an inference of negligence where plaintiff
produces substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of defendant, and that
the occurrence [sic] was such that in the ordinary course of things would not happen
if reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine
is not a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a particular
case, is not intended to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden of plaintiff of
proving a breach of the duty of due care. The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence is absent and not readily
available. 36
In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the
caesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of
direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent
Villegas's body, which, needless to say, does not occur unless through the intersection of negligence. Second, since
aside from the caesarean section, private respondent Villegas underwent no other operation which could have caused
the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product
of the caesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption
of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently
leaving behind a piece of rubber in private respondent Villegas's abdomen and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the
people, 37 and the State's compelling interest to enact measures to protect the public from "the potentially deadly effects of
incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma." 38 Indeed,
a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent
and skill." 39 Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her
profession's rigid ethical code and in contravention of the legal standards set forth for professionals, in general, 40 and
members of the medical profession, 41 in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby
AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.

G.R. No. 45985 May 18, 1990

CHINA AIR LINES, LTD., petitioner,

vs.

COURT OF APPEALS, JOSE PAGSIBIGAN, PHILIPPINE AIR LINES, INC. and ROBERTO
ESPIRITU,respondents.
G.R. No. 46036 May 18, 1990
PHILIPPINE AIR LINES, INC. and ROBERTO ESPIRITU, petitioners,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN and CHINA AIR LINES, LTD., respondents.
Balgos & Perez Law Offices for petitioner China Air Lines, Ltd.
Siguion Reyna, Montecillo & Ongsiako for petitioners in G.R. No. 46036.
Syquia Law Offices for Jose Pagsibigan.

REGALADO, J.:
These consolidated petitions seek the review of the decision of respondent court in CA-G.R. No. 53023-R entitled
"Jose E. Pagsibigan, Plaintiff-Appellant, vs. Philippine Air Lines, Inc. and Roberto Espiritu, Defendants-Appellants;
China Air Lines, Ltd., Defendant-Appellee," 1 the dispositive portion of which declares:
WHEREFORE, except for a modification of the judgment in the sense that the award of P20,000.00
in favor of the plaintiff shall be in the concept of nominal damages instead of exemplary damages,
and that defendant China Air Lines, Ltd. shall likewise be liable with its two co-defendants in a joint
and solidary capacity, the judgment appealed from is hereby affirmed in all other respects, without
costs. 2
The challenged decision of respondent court contains a synthesis of the facts that spawned these cases and the
judgment of the court a quo which it affirmed with modifications, thus:
On June 4, 1968, plaintiff Jose E. Pagsibigan, then Vice-President and General Manager of Rentokil
(Phils.) Inc., a local firm dealing in insecticides, pesticides and related services appurtenant thereto,
purchased a plane ticket for a Manila-Taipei-Hongkong-Manila flight from the Transaire Travel
Agency. The said agency, through its Cecille Baron, contacted the Manila Hotel branch of defendant
Philippine Air Lines which at that time was a sales and ticketing agent of defendant China Air lines.
On June 6, 1968, PAL, through its ticketing clerk defendant Roberto Espiritu, cut and issued PAL
Ticket No. 01 7991 for a Manila-Taipei-Hongkong-Manila flight. According to the plane ticket, the
plaintiff was booked on CAL CI Flight No. 812 to depart from Manila for Taipei on June 10, 1968 at
17:20 hours (5:20 p.m.), Exhibit A.
On June 10, 1968, one hour before the scheduled time of the flight as stated in his ticket, the plaintiff
arrived at the airport to check in for CI Flight No. 812. Upon arriving at the airport, the plaintiff was
informed that the plane he was supposed to take for Taipei had left at 10:20 in the morning of that
day. The PAL employees at the airport made appropriate arrangements for the plaintiff to take PAL's
flight to Taipei the following day, June 11, 1968. The plaintiff took said flight and arrived in Taipei
around noontime of the said date.
On July 8, 1968, the plaintiff, through counsel, made formal demand on defendant PAL, for moral
damages in not less than P125,000.00 for what the plaintiff allegedly suffered as a result of his failure
to take the flight as stated in his plane ticket. (Exhibit E) After a series of negotiations among the
plaintiff, PAL and CAL failed to reach an amicable settlement, the plaintiff instituted this action in

the Court of First Instance of Rizal on September 22, 1969. In his complaint, plaintiff prays for the
recovery of P125,000.00 as moral damages and P25,000.00 for and as attorney's fees. The moral
damages allegedly arose from the gross negligence of defendant Roberto Espiritu in stating on the
plane ticket that the time of departure was 17:20 hours, instead of 10:20 hours which was the correct
time of departure in the revised summer schedule of CAL. Plaintiff claims that by reason of his
failure to take the plane, he suffered besmirched reputation, embarrassment, mental anguish,
wounded feelings and sleepless nights, inasmuch as when he went to the airport, he was accompanied
by his business associates, close friends and relatives. He further averred that his trip to Taipei was
for the purpose of conferring with a certain Peng Siong Lim, President of the Union Taiwan
Chemical Corporation, scheduled at 9:00 a.m. on June 11, 1968.
Defendant Philippine Air Lines alleged in its answer that the departure time indicated by Espiritu in
the ticket was furnished and confirmed by the reservation office of defendant China Air Lines. It
further averred that CAL had not informed PAL's Manila Hotel Branch of the revised schedule of its
flight, nor provided it with revised timetable; that when the travel agency sought to purchase the
ticket for the plaintiff on CAL CI Flight No. 812 for June 10, 1968, Espiritu who was then the
ticketing clerk on duty, checked with the reservation office of CAL on the availability of space, the
date and the time of said flight; that CAL's Dory Chan informed Espiritu that the departure time of
Flight No. 812 on June 10, 1968 was at 5:20 in the afternoon of said date. PAL asserted a cross-claim
against CAL for attorney's fees and for reimbursement of whatever amount the court may adjudge
PAL to be liable to the plaintiff. Defendant Espiritu adopted the defenses of his co-defendant PAL.
Defendant China Air Lines, for its part, disclaims liability for the negligence and incompetence of the
employees of PAL. It avers that it had revised its schedule since April 1, 1968, the same to be
effective on April 20, 1968, and the said revised schedule was adopted only after proper petition with
and approval of the Civil Aeronautics Board of which all airlines, including defendant PAL, were
notified; that both printed copies of the international timetable and of the mimeographed notices of
the official schedule and flight departure schedules were distributed to all its sales agents, including
PAL, that after the effectivity of the new time schedules, PAL's Manila Hotel office had been issuing
and selling tickets based on the revised time schedule; and that, assuming that the plaintiff is entitled
to recover damages, the liability is on PAL and not on CAL. A cross-claim was likewise asserted by
CAL against its co-defendant PAL.
After due trial, the Court a quo rendered judgment laying the blame for the erroneous entry in the
ticket as to the time of departure to defendant Roberto Espiritu, ticketing agent of defendant PAL, and
that no employee of CAL contributed to such erroneous entry. It was further ruled that the plaintiff
had no reason to claim moral damages but may be entitled to recover exemplary damages. The
dispositive portion of the decision makes the following adjudication:
WHEREFORE, premises considered, judgment is hereby rendered sentencing the
defendants Philippine Air Lines, Inc. and Roberto Espiritu, to pay to plaintiff Jose
Pagsibigan jointly and severally, by way of exemplary damages, the sum of Twenty
Thousand Pesos (P20,000.00) plus Two Thousand Pesos (P2,000.00) as
reimbursement for attorney's fees and the costs.
The complaint is dismissed with respect to the defendant China Air Lines, Ltd. The
cross-claim filed by defendant PAL and Espiritu against defendant CAL as well as
the cross-claim filed by the defendant CAL against defendant PAL and Espiritu are
also hereby dismissed. 3

From said decision of the court below, all the parties, except China Air Lines, Ltd. appealed to respondent court
which, however, sustained the ruling of the trial court denying Pagsibigan's claim for moral damages. It concluded
that Roberto Espiritu did not act with malice or in bad faith in making a wrong entry of the time of departure on the
ticket, and that the mistake committed by Espiritu appears to be an honest one done in good faith.
Respondent court also ruled out the claim for exemplary damages for lack of legal basis. Nonetheless, as earlier noted,
it awarded Pagsibigan P20,000.00 as nominal damages, under Article 2221 of the Civil Code, for the vindication of a
legal wrong committed against him. As regards the liability of the parties, respondent court held:
There can be little question as to the liability of PAL and Espiritu for the damage caused to the
plaintiff due to the erroneous entry in the plane ticket made by the latter. They seek to justify the
erroneous statement as to the time of departure on the ground that such was the time given by Dory
Chan to Espiritu when the latter called up for the reservation in favor of plaintiff. Aside from the fact
that Dory Chan had vigorously disclaimed having given such information to Espiritu, We are
convinced that, as the trial court had found, CAL had no share in the error committed by Espiritu in
indicating the time of departure of Flight No. 812. PAL had shown through the testimony of Carmen
Ibazeta Gallaga, ticket representative of PAL at the Manila Hotel Office, that they received circulars
and timetables of airlines in the PAL main office. It further appears that on two occasions, defendant
PAL cut and issued tickets for CAL based on the new schedule even before June 10, 1968. As a
matter of fact, the other entries of time departures in the ticket issued to the plaintiff are in
accordance with the revised schedule, and that the only error therein was with respect to the departure
from Manila on June 10, 1968.
However, in proving that the fault lied with Espiritu, defendant CAL derives no solace nor gains an
advantage. It may not claim exemption from liability by reason thereof. Espiritu was an employee of
PAL and whatever negligence was committed by him is attributable to PAL. It is an admitted fact that
PAL is an authorized agent of CAL. In this relationship, the responsibility of defendant PAL for the
tortious act of its agent or representative is inescapable. . . .
xxx xxx xxx
A similar principle is recognized in our Civil Code in its Art. 2180 . . . . Unlike in the doctrine
ofrespondeat superior, however, the Civil Code permits the employer to escape this liability upon
proof of having observed all the diligence of a good father of a family to prevent the damage. We find
the evidence of defendant CAL to be insufficient to overcome the presumption of negligence on its
part for the act done by defendant Roberto Espiritu. (Emphasis supplied)
The liability for the damage sustained by the plaintiff should, therefore, be borne by all of the
defendants in a joint and solidary capacity (Art. 2194). The liability of an employer under Art. 2180
is primary and direct. . . .
xxx xxx xxx
It appearing that defendant CAL, as employer or principal, did not contribute to the negligence
committed by defendants PAL and Roberto Espiritu, its liability to the plaintiff could be passed on to
said defendants. Defendant CAL, however, did not take an appeal and did not, therefore, take
exception to the dismissal of its cross-claim against defendants PAL and Espiritu. This serves as an
obstacle for a rendition of judgment favorable to CAL on its said counterclaim. 4
In its petition for review on certiorari in G.R. No. L-45985, petitioner China Air Lines, Ltd. (CAL) relied on the
following grounds:

1. A principal cannot be held liable, much less solidarily, for the negligence of the sub-agent, where
the former never participated in, ratified or authorized the latter's act or omission.
2. Dismissal of the cross-claim of petitioner against the private respondents Philippine Air Lines, Inc.
and Roberto Espiritu will not prevent the release of the petitioner from liability to the private
respondent Pagsibigan.
3. The award of damages was unwarranted both legally and factually. 5
On their part, petitioners Philippine Air Lines, Inc. (PAL) and Roberto Espiritu made the following submissions in
G.R. No. L-46036, to wit:
1. The respondent Court of Appeals erred in not holding that respondent China Air Lines, Ltd., being
the principal, is solely liable to respondent Pagsibigan.
2. The respondent Court of Appeals erred in awarding respondent Pagsibigan the sum of P20,000.00
as nominal damages. 6
In G.R. No. L-45985, respondent Pagsibigan contends, by way of refutation, that CAL's liability is based on breach of
contract of transportation which was the proximate result of the negligence and/or error committed by PAL and
Espiritu; that even assuming that CAL has no share in the negligence of PAL and Espiritu, the liability of CAL does
not cease upon proof that it exercised all the diligence of a good father of a family in the selection and supervision of
its employees. Traversing such contentions, CAL argues that it can not be made liable under Article 2180 of the Civil
Code because of the absence of employer-employee relationship between it and PAL.
On the other hand, in G.R. No. L-46036, respondent Pagsibigan claims that PAL is liable under Article 1909 of the
said code which holds an agent responsible not only for fraud but also for negligence which shall be judged with more
or less rigor by the courts, according to whether the agency was or was not for a compensation. PAL, however,
maintains that for lack of privity with Pagsibigan, the suit for breach of contract should have been directed against
CAL.
What surfaces as a procedural maneuver taken by respondent Pagsibigan in the course of the proceedings in these
cases has confused the real issues in the controversy subject of both petitions before us.
Respondent Pagsibigan has opted to seek redress by pursuing two remedies at the same time, that is, to enforce the
civil liability of CAL for breach of contract and, likewise, to recover from PAL and Espiritu for tort or culpa
aquiliana. What he has overlooked is the proscription against double recovery under Article 2177 of the Civil Code
which, while not preventing recourse to any appropriate remedy, prevents double relief for a single wrong.
To avoid inequitable effects under such confluence of remedies, the true nature of the action instituted by respondent
Pagsibigan must be determined. A careful perusal of the complaint of respondent Pagsibigan will readily disclose that
the allegations thereof clearly and unmistakably make out a case for a quasi-delict in this wise:
4. That at all pertinent times particularly in June of 1968, defendant China Air Lines Ltd. has been
operating regular scheduled flights to and from Manila, and has offered accommodations thereon
through, among others, defendant PAL as its authorized sales agent and/or ticketing agent, such that
China Airlines Ltd. is here impleaded as being the principal of defendant PAL;
5. That at all pertinent times, particularly in June of 1968, defendant Roberto Espiritu has been in the
employ of defendant PAL at its sales counter at the PAL Manila Hotel branch office and is here
impleaded as defendant as being the proximate malfeasor in this cause of action;
xxx xxx xxx

12. That plaintiff missed the initial Manila-Taipei leg (CI Flight 812) on June 10, 1968, as set forth in
his ticket (Annex "A") solely and exclusively by reason of gross incompetence and inexcusable
negligenceamounting to bad faith of defendant PAL acting, through its sales representative, the
defendant Roberto Espiritu, of its Manila Hotel branch office in the discharge of its duties as sales
agent and/or ticketing agent for defendant China Airlines Ltd. as principal.
13. That as a direct result of culpable incompetence and negligence of defendant Roberto Espiritu as
sales representative of defendant PAL, plaintiff was unable to attend to previously scheduled business
commitments in Taipei . . . resulting in direct and indirect prejudice to plaintiff that has yet to be fully
assessed; (Emphasis supplied) 7
xxx xxx xxx

Had the intention of respondent Pagsibigan been to maintain an action based on breach of contract of carriage, he
could have sued CAL alone considering that PAL is not a real party to the contract. Moreover, in cases of such nature,
the aggrieved party does not have to prove that the common carrier was at fault or was negligent. All he has to prove
is the existence of the contract and the fact of its non-performance by the carrier. 8
The records disclose that the trial court delved much into the issues of who was at fault, and its decision is primarily
anchored on its factual findings regarding the civil liability arising from culpa aquiliana of the erring party, to this
effect:
Plaintiff said that the erroneous entry in his ticket which made it appear that his CAL flight of June
10, 1968 was to be at 5:20 in the afternoon was due to the fault or negligence of PAL's Roberto
Espiritu, a co-defendant herein, as well as the employees of the defendant CAL. In making CAL coresponsible, plaintiff appears to rely on the doctrine that the principal is responsible for the act of an
agent done within the scope of the agency.
There is no proof extant that any of the employees of PAL had contributed to the erroneous entry in
plaintiffs PAL ticket for Taipei which placed his time of departure to 5:20 o'clock in the afternoon of
June 10, 1968. Only defendant Roberto Espiritu appears to be solely and exclusively responsible for
such error and therefor the conclusion becomes inevitable that CAL must be absolved from any
blame because defendant Roberto Espiritu who committed the error is not an employee or agent of
the defendant CAL. 9
It, therefore, becomes evident that respondent Pagsibigan, having sensed that he can not hold CAL liable on aquasidelict, decided on appeal to instead make a sinistral detour, so to speak, by claiming that his action against CAL is
based on a breach of contract of carriage.
We can not permit respondent Pagsibigan to change his theory at this stage; it would be unfair to the adverse party
who would have no more opportunity to present further evidence, material to the new theory, which it could have
done had it been aware earlier of the new theory at the time of the hearing before the trial court. 10
There is indeed no basis whatsoever to hold CAL liable on a quasi-delict or culpa aquiliana. As hereinbefore stated,
the court a quo absolved CAL of any liability for fault or negligence. This finding was shared by respondent court
when it concluded that defendant CAL did not contribute to the negligence committed by therein defendantsappellants PAL and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred from proving that it observed due diligence in the selection and
supervision of its employees. This argument is obviously misplaced. CAL is not the employer of PAL or Espiritu.
InDuavit vs. The Hon. Court of Appeals, et al., 11 we have stressed the need of first establishing the existence of an
employer-employee relationship before an employer may be vicariously liable under Article 2180 of the Civil Code.

With respect to PAL and Espiritu, they disclaim any liability on the theory that the former is merely an agent of CAL
and that the suit should have been directed against CAL alone. There is no question that the contractual relation
between both airlines is one of agency. Suffice it to say, however, that in an action premised on the employee's
negligence, whereby respondent Pagsibigan seeks recovery for the resulting damages from both PAL and Espiritu
without qualification, what is sought to be imposed is the direct and primary liability of PAL as an employer under
said Article 2180.
When an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there was
negligence on the part of the employer either in the selection of the employee or in the supervision over him after such
selection. The presumption, however, may be rebutted by a clear showing on the part of the employer that it has
exercised the care and diligence of a good father of a family in the selection and supervision of his employee. 12
Hence, to escape solidary liability for the quasi-delict committed by Espiritu, it is imperative that PAL must adduce
sufficient proof that it exercised such degree of care. PAL failed to overcome the presumption. As found by
respondent court, CAL had revised its schedule of flights since April 1, 1968; that after the Civil Aeronautics Board
had approved the revised schedule of flights, PAL was duly informed thereof and, in fact, PAL's Manila Hotel branch
office had been issuing and selling tickets based on the revised time schedule before June 10, 1968.
PAL's main defense is that it is only an agent. As a general proposition, an agent who duly acts as such is not
personally liable to third persons. However, there are admitted exceptions, as in this case where the agent is being
sued for damages arising from a tort committed by his employee.
The respondent court found that the mistake committed by Espiritu was done in good faith. While there is no evidence
that he acted with malice, we can not entirely condone his actuations. As an employee of PAL, the nature of his
functions requires him to observe for the protection of the interests of another person that degree of care, precaution
and vigilance which the circumstances justly demand. He committed a clear neglect of duty.
Ergo, for his negligence, Espiritu is primarily liable to respondent Pagsibigan under Article 2176 of the Civil Code.
For the failure of PAL to rebut the legal presumption of negligence in the selection and supervision of its employee, it
is also primarily liable under Article 2180 of the same code which explicitly provides that 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.
Under the aforesaid provision, all that is required is that the employee, by his negligence, committed a quasidelictwhich caused damage to another, and this suffices to hold the employer primarily and solidarity responsible for
the tortious act of the employee. PAL, however, can demand from Espiritu reimbursement of the amount which it will
have to pay the offended party's claim. 13
On the issue of damages, we agree, except as to the amount, that nominal damages may be awarded to respondent
Pagsibigan to vindicate the legal wrong committed against him. It appearing that the wrong committed was
immediately rectified when PAL promptly booked him for the next morning's flight to Taipei where he arrived before
noon of June 11, 1968 and was able to attend his scheduled conference, and considering the concept and purpose of
nominal damages, the award of P20,000.00 must accordingly be reduced to an amount equal or at least commensurate
to the injury sustained.
WHEREFORE, the decision of respondent Court of Appeals is MODIFIED accordingly. China Air Lines, Ltd. is
hereby absolved from liability. Philippine Air Lines, Inc. and Roberto Espiritu are declared jointly and severally liable
to pay the sum of P10,000.00 by way of nominal damages, without prejudice to the right of Philippine Air Lines, Inc.
to recover from Roberto Espiritu reimbursement of the damages that it may pay respondent Jose Pagsibigan.
SO ORDERED.

G.R. No. 96781 October 1, 1993

EMILIANO MANUEL and SUPERLINES TRANSPORTATION CO., INC., petitioners,

vs.
HONORABLE COURT OF APPEALS, ERNESTO A. RAMOS substituted by Goyena Z. Ramos, Grace,
David, Jobet, Portia and Banjo, all surnamed RAMOS; and GOYENA ZANAROSA-RAMOS, for herself and
as Guardian Ad Litem for the minors JOBET, BANJO, DAVID and GRACE, all surnamed RAMOS;
FERNANDO ABCEDE, SR., for himself and as Guardian Ad Litem for minor FERNANDO G. ABCEDE, JR.;
MIGUEL JERNZ MAGO, as Guardian Ad Litem for minor ARLEEN R. MAGO, and ANACLETA J.
ZANAROSA, respondents.
Benito P. Fabie for petitioners.
Constante Banayos for private respondents.

QUIASON, J.:
This is an appeal by certiorari under Rule 45 of the Revised Rules of Court from the decision of the Court of Appeals
in CA-G.R. CV No. 11780, and its Resolution dated January 8, 1991, denying petitioner's motion for reconsideration.
The decision subject of the appeal was an affirmation of the judgement of the Court of First Instance of Camarines
Norte, in Civil Case No. 3020 and whose dispositive portion states:
PREMISES CONSIDERED, judgment is hereby rendered : (1) finding the defendant Emiliano
Manuel negligent, reckless and imprudent in the operation of Superlines Bus No. 406, which was the
proximate cause of the injuries suffered by the plaintiffs and damage of the Scout Car in which they
were riding; (2) ordering the said defendant, jointly and solidarily, with the defendant Superlines Bus
Co., Inc. to pay plaintiffs the amounts of P49,954,86, as itemized elsewhere in this decision and the
costs.
It appearing that the defendants Superlines Transportation Co., Inc. is insured with the defendant
Perla Compania de Seguros, which has admitted such insurance, the latter is hereby ordered to pay
the former the amounts so stated up to the extent of its insurance coverage" (Rollo, pp. 70-71).

The operative facts culled from the decision of the Court of Appeals are as follows:
Private respondents were passengers of an International Harvester Scout Car (Scout Car) owned by respondent
Ramos, which left Manila for Camarines Norte in the morning of December 27, 1977 with respondent Fernando
Abcede, Sr. as the driver of the vehicle.
There was a drizzle at about 4:10 P.M. when the Scout car, which was then negotiating the zigzag road of Bo. Paraiso,
Sta. Elena, Camarines Norte, was hit on its left side by a bus. The bus was owned by petitioner Emiliano Manuel. Due
to the impact, the Scout car was thrown backwards against a protective railing. Were it not for the railing, the Scout
car would have fallen into a deep ravine. All its ten occupants, which included four children were injured, seven of the
victims sustained serious physical injuries (Rollo, p. 28).
Emiliano Manuel, the driver of the bus, was prosecuted for multiple physical injuries through reckless imprudence in
the Municipal Court of Sta. Elena, Camarines Norte. As he could not be found after he ceased reporting for work a
few days following the incident, the private respondents filed the instant action for damages based on quasi-delict.
After trial, the court a quo rendered judgment against petitioners and Perla Compania de Seguros, that covered the
insurance of the bus. The court ordered them to pay, jointly and severally, the amount of P49,954.86 in damages to
respondents.
On appeal, the Court of Appeals, affirmed the decision of the trial court.
In their appeal before us, petitioners contend that it was Fernando Abcede, Jr., driver of the Scout car, who was at
fault. Besides, petitioners claim the Fernando Abcede, Jr., who was only 19-years old at the time of the incident, did
not have a driver's license (Rollo, p. 10).
Proof of this, according to petitioners, was that:
Immediately after the incident, the bus conductor Cesar Pica and passengers, including Maximino
Jaro, alighted from the bus. A woman passenger of the IH Scout car, Mrs. Ramos, was heard saying:
"Iyan na nga ba ang sinasabi ko, napakalakas ng loob," referring to young man, Fernando Abcede, Jr.
who was the driver of the IH Scout car (tsn., p. 43, November 19, 1979; tsn, p. 23-A. February 7,
1980) . . . (Rollo, p. 75).
Likewise, petitioner questioned the accuracy of the pictures and sketches submitted by private respondents as
evidence that the Superlines bus encroached on the lane of the Scout car. According to them, the sketch made by the
police investigator showing the skid marks of the bus, is inadmissible as evidence because it was prepared the day
after the incident and the alleged "tell-tale" skid marks and other details had already been obliterated by the heavy
downpour which lasted for at least an hour after the accident (Rollo, p. 87). Likewise, they claim that the policeman
who prepared the sketch was not the police officer assigned to conduct the investigation (Rollo, pp. 88-89).
While it may be accepted that some of the skid marks may have been erased by the "heavy downpour" on or about the
time of the accident, it remains a possibility that not all skid marks were washed away. The strong presumption of
regularity in the performance of official duty (Rule 131, Sec. 3(m), 1989 Rules on Evidence) erases, in the absence of
evidence to the contrary, any suspicions that the police investigator just invented the skid marks indicated in his
report.
Granting, however, that the skid marks in the questioned sketch were inaccurate, nonetheless, the finding of the Court
of Appeals that the collision took place within the lane of the Scout car was supported by other conclusive evidence.
"Indeed, a trail of broken glass which was scattered along the car's side of the road, whereas the bus lane was entirely
clear of debris (Exhibit "L-1," p. 34, Records, pp. 56-65; TSN, Session of March 14, 1979)" (Rollo, p. 31).

Furthermore, the fact that the Scout car was found after the impact at rest against the guard railing shows that it must
have been hit and thrown backwards by the bus (Rollo, p. 103). The physical evidence do not show that the Superlines
Bus while traveling at high speed, usurped a portion of the lane occupied by the Scout car before hitting it on its left
side. On collision, the impact due to the force exerted by a heavier and bigger passenger bus on the smaller and lighter
Scout car, heavily damaged the latter and threw it against the guard railing.
Petitioner's contention that the Scout car must have been moved backwards is not only a speculation but is contrary to
human experience. There was no reason to move it backwards against the guard railing. If the purpose was to clear the
road, all that was done was to leave it where it was at the time of the collision, which was well inside its assigned lane.
Besides, even petitioners accept the fact that when the police arrived at the scene of the accident, they found no one
thereat (Rollo, p. 13). This further weakens the possibility that some persons moved the Scout car to rest on the guard
railing.
The evidence with respect to the issue that Fernando Abcede, Jr. who was not duly licensed, was the one driving the
Scout car at the time of the accident, could not simply exempt petitioner's liability because they were parties at fault
for encroaching on the Scout car's lane (Rollo, pp. 29-30).
Nevertheless, the witnesses presented by petitioners who allegedly saw "the younger Abcede pined behind the driver's
wheels," testified on matters that transpired after the accident. Discrediting this allegation, the Court of Appeals noted
that none of the aforesaid witnesses actually saw the younger Abcede driving the car and that the younger Abcede
could have simply been thrown off his seat toward the steering wheel (Rollo, p. 29).
Be that as it may, this Court has followed a well-entrenched principle that the factual findings of the Court of Appeals
are normally given great weight, more so when the findings tally with the findings of the trial court and are supported
by the evidence (Francisco v. Magbitang, 173 SCRA 382 [1989]; New Owners/Management of TML Garments, Inc.
v. Zaragosa, 170 SCRA 563-564 [1989]).
The reason for this entrenched principle is given in Chemplex (Phils.), Inc., et al. v. Ramon C. Pamatian, et al., 57
SCRA 408 [1974], thus:
This Court is not a trier of facts, and it is beyond its function to make its own findings of certain vital
facts different from those of the trial court, especially on the basis of the conflicting claims of the
parties and without the evidence being properly before it. For this Court to make such factual
conclusions is entirely unjustified first, because if material facts are controverted, as in this case,
and they are issues being litigated before the lower court, the petition for certiorari would not be in
aid of the appellate jurisdiction of this Court; and, secondly, because it preempts the primary function
of the lower court, namely, to try the case on the merits, receive all the evidence to presented by the
parties, and only then come to a definite decision, including either the maintenance or the discharge
of the preliminary injunction it has issued.
Appellants, likewise, contested the awarded damages as excessive and unsubstantiated. The trial court's findings show
otherwise, as can be gleaned from the following excerpt of this decision:
Plaintiffs were able to prove their injuries and submitted evidence to show expenses for their
treatment, hospitalization and incidental disbursement (Exhs. AA to HH and their submarkings),
having a total amount of P12,204.86 which had admittedly (sic) shouldered by plaintiff Ernesto
Ramos. Considering the nature of the injuries as shown by the respective Medical Certificates (Exhs.
A to J and their submarkings) said amount is very reasonable. It was also shown that the Scout car is
a total wreck, the value of which was estimated to be P20,000.00 which may be the same amount to
put (sic) into a running condition. We consider, likewise said amount reasonable taking into account
its brand (International Harvester Scout car). The above mentioned damages are considered actual or

compensatory (Par. 1 Art. 2197 in relation to Art. 2199, New Civil Code). Evidence was also adduced
showing that as a result of the incident and the resultant injuries there had been an impairment on the
earning capacity of some of the plaintiffs (Fernando Abcede, Sr., Anacleta Zanarosa, Ernesto Ramos
and Goyena Ramos) which are recoverable pursuant to Article 2205 of the New Civil Code.
Considering the nature of their injuries one month each loss of income seem reasonable. Attorney's
fees and expenses of litigation is also proper. Since the act complained of falls under the aegis
ofquasi-delict (culpa aquilina), moral damages is likewise available to plaintiffs pursuant to Article
2219 also of the New Civil Code (Rollo, pp. 113-114).
In addition, moral damages may be recovered if they are the proximate results of defendant's wrongful acts or
omission as in this case (Banson vs. CA, 175 SCRA 297 [1989]).
WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals is AFFIRMED, with costs against
petitioners.
SO ORDERED.