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

1 of 34| P a g e
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

2 of 34| P a g e
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-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:

3 of 34| P a g e
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 line-pointing 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.

4 of 34| P a g e
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.

G.R. No. L-32611 November 3, 1930

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

vs.

5 of 34| P a g e
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.

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.

6 of 34| P a g e
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 near-by.
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

7 of 34| P a g e
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 Gwendoline and 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 Zuñiga, 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

8 of 34| P a g e
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 culpa
aquiliana and not to culpa contractual.

9 of 34| P a g e
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 a presumption 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.)

10 of 34| P a g e
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 vinculum exists 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

11 of 34| P a g e
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:

12 of 34| P a g e
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

13 of 34| P a g e
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

14 of 34| P a g e
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

15 of 34| P a g e
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. 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."

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

16 of 34| P a g e
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.lâwphi1.ñet

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.

17 of 34| P a g e
 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., 11 Manresa 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. 13 Cooley' 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 plaintiff-
appellant, 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.

18 of 34| P a g e
 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

19 of 34| P a g e
 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-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

20 of 34| P a g e
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:

21 of 34| P a g e
(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava as
ponente;

(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

22 of 34| P a g e
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

23 of 34| P a g e
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,

24 of 34| P a g e
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:

25 of 34| P a g e
(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

26 of 34| P a g e
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 non-possession 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

27 of 34| P a g e
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. 7 This 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:

28 of 34| P a g e
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.

29 of 34| P a g e
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 by Picart 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.

30 of 34| P a g e
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his
employer Phoenix 16 in 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. No. 79578 March 13, 1991

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner,
vs.
HON. COURT OF APPEALS, and SPOUSES MINERVA TIMAN and FLORES TIMAN, respondents.
Salalima, Trenas, Pagaoa & Associates for petitioner.
Paul P. Lentejas for private respondents.
SARMIENTO, J.:

A social condolence telegram sent through the facilities of the petitioner gave rise to the present
petition for review on certiorari assailing the decision1 of the respondent Court of Appeals which
affirmed in toto the judgment2 of the trial court, dated February 14, 1985, the dispositive portion of
which reads:

WHEREFORE, premises considered, judgment is hereby rendered:

1. Ordering the defendant RCPI to pay plaintiff the amount of P30,848.05 representing actual and
compensatory damages; P10,000.00 as moral damages and P5,000.00 as exemplary damages.

2. Awarding of attorney's fees in the sum of P5,000.00. Costs against the defendant.

SO ORDERED.3

The facts as gleaned from the records of the case are as follows:

On January 24, 1983, private respondents-spouses Minerva Timan and Flores Timan sent a telegram of
condolence to their cousins, Mr. and Mrs. Hilario Midoranda, at Trinidad, Calbayog City, through
petitioner Radio Communications of the Philippines, Inc. (RCPI, hereinafter) at Cubao, Quezon City, to
convey their deepest sympathy for the recent death of the mother-in-law of Hilario Midoranda4 to wit:

MR. & MRS. HILARIO MIDORANDA

31 of 34| P a g e
TRINIDAD, CALBAYOG CITY

MAY GOD GIVE YOU COURAGE AND STRENGTH TO BEAR YOUR LOSS. OUR DEEPEST SYMPATHY TO YOU
AND MEMBERS OF THE FAMILY.

MINER & FLORY.5

The condolence telegram was correctly transmitted as far as the written text was concerned. However,
the condolence message as communicated and delivered to the addressees was typewritten on a
"Happy Birthday" card and placed inside a "Christmasgram" envelope. Believing that the transmittal to
the addressees of the aforesaid telegram in that nonsuch manner was done intentionally and with gross
breach of contract resulting to ridicule, contempt, and humiliation of the private respondents and the
addressees, including their friends and relatives, the spouses Timan demanded an explanation.
Unsatisfied with RCPI's explanations in its letters, dated March 9 and April 20, 1983, the Timans filed a
complaint for damages.6

The parties stipulated at the pre-trial that the issue to be resolved by the trial court was:

WHETHER or not the act of delivering the condolence message in a Happy Birthday" card with a
"Christmasgram" envelope constitutes a breach of contract on the part of the defendant. If in the
affirmative, whether or not plaintiff is entitled to damages.7

The trial court rendered judgment in favor of the respondents Timans which was affirmed in toto by the
Court of Appeals. RCPI now submits the following assignment of errors:

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ACTUAL AND COMPENSATORY
DAMAGES IN THE AMOUNT OF P30,848.05.

II

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY MORAL DAMAGES IN THE
AMOUNT OF P10,000.00.

III

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY EXEMPLARY DAMAGES IN THE
AMOUNT OF P5,000.00.

IV

THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ATTORNEYS FEES IN THE
AMOUNT OF P5,000.00 PLUS COSTS OF SUIT.8

The four assigned errors are going to be discussed jointly because they are all based on the same
findings of fact.

We fully agree with the appellate court's endorsement of the trial court's conclusion that RCPI, a
corporation dealing in telecommunications and offering its services to the public, is engaged in a
business affected with public interest. As such, it is bound to exercise that degree of diligence expected
of it in the performance of its obligation.9

One of RCPI's main arguments is that it still correctly transmitted the text of the telegram and was
received by the addressees on time despite the fact that there was "error" in the social form and

32 of 34| P a g e
envelope used.10 RCPI asserts that there was no showing that it has any motive to cause harm or
damage on private respondents:

Petitioner humbly submits that the "error" in the social form used does not come within the ambit of
fraud, malice or bad faith as understood/defined under the law.11

We do not agree.

In a distinctly similar case,12 and oddly also involving the herein petitioner as the same culprit, we held:

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
. . . 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.13

Now, in the present case, it is self-evident that a telegram of condolence is intended and meant to
convey a message of sorrow and sympathy. Precisely, it is denominated "telegram of condolence"
because it tenders sympathy and offers to share another's grief. It seems out of this world, therefore, to
place that message of condolence in a birthday card and deliver the same in a Christmas envelope for
such acts of carelessness and incompetence not only render violence to good taste and common sense,
they depict a bizarre presentation of the sender's feelings. They ridicule the deceased's loved ones and
destroy the atmosphere of grief and respect for the departed.

Anyone who avails of the facilities of a telegram company like RCPI can choose to send his message in
the ordinary form or in a social form. In the ordinary form, the text of the message is typed on plain
newsprint paper. On the other hand, a social telegram is placed in a special form with the proper
decorations and embellishments to suit the occasion and the message and delivered in an envelope
matching the purpose of the occasion and the words and intent of the message. The sender pays a
higher amount for the social telegram than for one in the ordinary form. It is clear, therefore, that when
RCPI typed the private respondents' message of condolence in a birthday card and delivered the same in
a colorful Christmasgram envelope, it committed a breach of contract as well as gross negligence. Its
excuse that it had run out of social condolence cards and envelopes14 is flimsy and unacceptable. It
could not have been faulted had it delivered the message in the ordinary form and reimbursed the
difference in the cost to the private respondents. But by transmitting it unfittingly—through other
special forms clearly, albeit outwardly, portraying the opposite feelings of joy and happiness and
thanksgiving—RCPI only exacerbated the sorrowful situation of the addressees and the senders. It bears
stress that this botchery exposed not only the petitioner's gross negligence but also its callousness and
disregard for the sentiments of its clientele, which tantamount to wanton misconduct, for which it must
be held liable for damages.

It is not surprising that when the Timans' telegraphic message reached their cousin, it became the joke
of the Midorandas' friends, relatives, and associates who thought, and rightly so, that the unpardonable
mix-up was a mockery of the death of the mother-in-law of the senders' cousin. Thus it was not
unexpected that because of this unusual incident, which caused much embarrassment and distress to
respondent Minerva Timan, he suffered nervousness and hypertension resulting in his confinement for
three days starting from April 4, 1983 at the Capitol Medical Center in Quezon City.15

The petitioner argues that "a court cannot rely on speculation, conjectures or guess work as to the fact
and amount of damages, but must depend on the actual proof that damages had been suffered and
evidence of the actual amount.16 In other words, RCPI insists that there is no causal relation of the
illness suffered by Mr. Timan with the foul-up caused by the petitioner. But that is a question of fact.

33 of 34| P a g e
The findings of fact of the trial court and the respondent court concur in favor of the private
respondents. We are bound by such findings—that is the general rule well-established by a long line of
cases. Nothing has been shown to convince us to justify the relaxation of this rule in the petitioner's
favor. On the contrary, these factual findings are supported by substantial evidence on record.

Anent the award of moral and exemplary damages assigned as errors, the findings of the respondent
court are persuasive.

. . . When plaintiffs placed an order for transmission of their social condolence telegram, defendant did
not inform the plaintiff of the exhaustion of such social condolence forms. Defendant-appellant
accepted through its authorized agent or agency the order and received the corresponding
compensation therefor. Defendant did not comply with its contract as intended by the parties and
instead of transmitting the condolence message in an ordinary form, in accordance with its guidelines,
placed the condolence message expressing sadness and sorrow in forms conveying joy and happiness.
Under the circumstances, We cannot accept the defendant's plea of good faith predicated on such
exhaustion of social condolence forms. Gross negligence or carelessness can be attributed to defendant-
appellant in not supplying its various stations with such sufficient and adequate social condolence forms
when it held out to the public sometime in January, 1983, the availability of such social condolence
forms and accepted for a fee the transmission of messages on said forms. Knowing that there are no
such forms as testified to by its Material Control Manager Mateo Atienza, and entering into a contract
for the transmission of messages in such forms, defendant-appellant committed acts of bad faith, fraud
or malice. . . .17

RCPI's argument that it can not be held liable for exemplary damages, being penal or punitive in
character,18 is without merit. We have so held in many cases, and oddly, quite a number of them
likewise involved the herein petitioner as the transgressor.

xxx xxx xxx

. . . In contracts and quasi-contracts, exemplary damages may be awarded if the defendant acted in a
wanton, fraudulent, reckless, oppressive or malevolent manner. There was gross negligence on the part
of RCPI personnel in transmitting the wrong telegram, of which RCPI must be held liable. Gross
carelessness or negligence constitutes wanton misconduct.

xxx xxx xxx

. . . punitive damages may be recovered for willful or wantonly negligent acts in respect of messages,
even though those acts are neither authorized nor ratified (Arkansas & L.R. Co. vs. Stroude 91 SW 18;
West vs. Western U. Tel. Co., 17 P807; Peterson vs. Western U. Tel. Co., 77 NW 985; Brown vs. Western
U. Tel. Co., 6 SE 146). Thus, punitive damages have been recovered for mistakes in the transmission of
telegrams (Pittman vs. Western Union Tel. Co., 66 SO 977; Painter vs. Western Union Tel. Co., 84 SE 293)
(emphasis supplied).19

We wish to add a little footnote to this Decision. By merely reviewing the number of cases that has
reached this Court in which the petitioner was time and again held liable for the same causes as in the
present case breach of contract and gross negligence—the ineluctable conclusion is that it has not in any
way reformed nor improved its services to the public. It must do so now or else next time the Court may
be constrained to adjudge stricter sanctions.

WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto.

Costs against the petitioner.

SO ORDERED.

34 of 34| P a g e
35 of 34| P a g e