JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE Its structure was safe and well-balanced.
ture was safe and well-balanced. ZHIENETH, therefore, had no
and ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS,
CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.
In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision [1] of the Court of
Appeals in C.A. G.R. No. CV 37937 and the resolution [2]denying their motion
for reconsideration. The assailed decision set aside the 15 January 1992
judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil
Case No. 7119 and ordered petitioners to pay damages and attorneys fees to
private respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvels Department
Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo
are the stores branch manager, operations manager, and supervisor,
respectively. Private respondents are spouses and the parents of Zhieneth
Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd
floor of Syvels Department Store, Makati City. CRISELDA was signing her
credit card slip at the payment and verification counter when she felt a sudden
gust of wind and heard a loud thud. She looked behind her. She then beheld
her daughter ZHIENETH on the floor, her young body pinned by the bulk of
the stores gift-wrapping counter/structure. ZHIENETH was crying and
screaming for help. Although shocked, CRISELDA was quick to ask the
assistance of the people around in lifting the counter and retrieving ZHIENETH
from the floor. [3]
ZHIENETH was quickly rushed to the Makati Medical Center where she was
operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after
the accident or on 22 May 1983, on the hospital bed. She was six years old.
[4]
The cause of her death was attributed to the injuries she sustained. The
provisional medical certificate [5] issued by ZHIENETHs attending doctor
described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon
petitioners the reimbursement of the hospitalization, medical bills and wake
and funeral expenses [6] which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for damages, docketed
as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for
actual damages, P300,000 for moral damages, P20,000 for attorneys fees and
an unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries
and consequent death of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her daughter by allowing her to
freely roam around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the counter,
triggering its eventual collapse on her. Petitioners also emphasized that the
counter was made of sturdy wood with a strong support; it never fell nor
collapsed for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it
observed the diligence of a good father of a family in the selection, supervision
and control of its employees. The other petitioners likewise raised due care
and diligence in the performance of their duties and countered that the
complaint was malicious for which they suffered besmirched reputation and
mental anguish. They sought the dismissal of the complaint and an award of
moral and exemplary damages and attorneys fees in their favor.
In its decision [7] the trial court dismissed the complaint and counterclaim after
finding that the preponderance of the evidence favored petitioners. It ruled that
the proximate cause of the fall of the counter on ZHIENETH was her act of
clinging to it. It believed petitioners witnesses who testified that ZHIENETH
clung to the counter, afterwhich the structure and the girl fell with the structure
falling on top of her, pinning her stomach. In contrast, none of private
respondents witnesses testified on how the counter fell. The trial court also
held that CRISELDAs negligence contributed to ZHIENETHs accident.
In absolving petitioners from any liability, the trial court reasoned that the
counter was situated at the end or corner of the 2nd floor as a precautionary
measure hence, it could not be considered as an attractive nuisance. [8] The
counter was higher than ZHIENETH. It has been in existence for fifteen years.
business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial
court its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETHs misbehavior; (2) CRISELDA was negligent in her care of
ZHIENETH; (3) petitioners were not negligent in the maintenance of the
counter; and (4) petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to
the conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was
already capable of contributory negligence, still it was physically impossible
for her to have propped herself on the counter. She had a small frame (four
feet high and seventy pounds) and the counter was much higher and heavier
than she was. Also, the testimony of one of the stores former employees,
Gerardo Gonzales, who accompanied ZHIENETH when she was brought to
the emergency room of the Makati Medical Center belied petitioners theory
that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH
was asked by the doctor what she did, ZHIENETH replied, [N]othing, I did not
come near the counter and the counter just fell on me. [9] Accordingly,
Gonzales testimony on ZHIENETHs spontaneous declaration should not only
be considered as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise moment that
she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of
ZHIENETHs death, was petitioners negligence in failing to institute measures
to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely
factual issues which could no longer be disturbed. They explained that
ZHIENETHs death while unfortunate and tragic, was an accident for which
neither CRISELDA nor even ZHIENETH could entirely be held faultless and
blameless. Further, petitioners adverted to the trial courts rejection of
Gonzales testimony as unworthy of credence.
As to private respondents claim that the counter should have been nailed to
the ground, petitioners justified that it was not necessary. The counter had
been in existence for several years without any prior accident and was
deliberately placed at a corner to avoid such accidents. Truth to tell, they acted
without fault or negligence for they had exercised due diligence on the matter.
In fact, the criminal case [10] for homicide through simple negligence filed by
private respondents against the individual petitioners was dismissed; a verdict
of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and
reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an
inverted L [11] with a top wider than the base. It was top heavy and the weight
of the upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously
brought to the attention of the management the danger the counter could
cause. But the latter ignored their concern. The Court of Appeals faulted the
petitioners for this omission, and concluded that the incident that befell
ZHIENETH could have been avoided had petitioners repaired the defective
counter. It was inconsequential that the counter had been in use for some time
without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7)
years old at the time of the incident, was absolutely incapable of negligence
or other tort. It reasoned that since a child under nine (9) years could not be
held liable even for an intentional wrong, then the six-year old ZHIENETH
could not be made to account for a mere mischief or reckless act. It also
absolved CRISELDA of any negligence, finding nothing wrong or out of the
ordinary in momentarily allowing ZHIENETH to walk while she signed the
document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court of Appeals then
awarded P99,420.86 as actual damages, the amount representing the
hospitalization expenses incurred by private respondents as evidenced by the
hospital's statement of account. [12] It denied an award for funeral expenses
for lack of proof to substantiate the same. Instead, a compensatory damage
of P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, [13] thus:
WHEREFORE, premises considered, the judgment of the lower court is SET
ASIDE and another one is entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the following:
1. P50,000.00 by way of compensatory damages for the death of
Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses
incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same
was denied in the Court of Appeals resolution [14] of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that
the Court of Appeals erred in disregarding the factual findings and conclusions
of the trial court. They stress that since the action was based on tort, any
finding of negligence on the part of the private respondents would necessarily
negate their claim for damages, where said negligence was the proximate
cause of the injury sustained. The injury in the instant case was the death of
ZHIENETH. The proximate cause was ZHIENETHs act of clinging to the
counter. This act in turn caused the counter to fall on her. This and
CRISELDAs contributory negligence, through her failure to provide the proper
care and attention to her child while inside the store, nullified private
respondents claim for damages. It is also for these reasons that parents are
made accountable for the damage or injury inflicted on others by their minor
children. Under these circumstances, petitioners could not be held responsible
for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated
from Syvels at the time he testified; hence, his testimony might have been
tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their arguments that
neither ZHIENETH nor CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of Appeals are substantiated
by the evidence on record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospitals emergency room
should receive credence; and finally, ZHIENETHs part of the res gestae
declaration that she did nothing to cause the heavy structure to fall on her
should be considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was
accidental or attributable to negligence; and (2) in case of a finding of
negligence, whether the same was attributable to private respondents for
maintaining a defective counter or to CRISELDA and ZHIENETH for failing to
exercise due and reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence
attaches to the defendant. [15] It is a fortuitous circumstance, event or
happening; an event happening without any human agency, or if happening
wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens.
[16]
On the other hand, negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent
and reasonable man would not do. [17] Negligence is the failure to observe,
for the protection of the interest of another person, that degree of care,
precaution and vigilance which the circumstances justly demand, whereby
such other person suffers injury. [18]
Accident and negligence are intrinsically contradictory; one cannot exist with
the other. Accident occurs when the person concerned is exercising ordinary
care, which is not caused by fault of any person and which could not have
been prevented by any means suggested by common prudence. [19]
The test in determining the existence of negligence is enunciated in the
landmark case of Picart v. Smith, [20] thus: Did the defendant in doing the
alleged negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is guilty
of negligence. [21]
We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETHs death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the
incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything
while the child was being treated?
A At the emergency room we were all surrounding the child. And when
the doctor asked the child what did you do, the child said nothing, I did not
come near the counter and the counter just fell on me.
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate wala po, hindi po ako lumapit doon. Basta
bumagsak. [22]
This testimony of Gonzales pertaining to ZHIENETHs statement formed (and
should be admitted as) part of the res gestae under Section 42, Rule 130 of
the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence
is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations and
admissions. [23] All that is required for their admissibility as part of the res
gestae is that they be made or uttered under the influence of a startling event
before the declarant had the time to think and concoct a falsehood as
witnessed by the person who testified in court. Under the circumstances thus
described, it is unthinkable for ZHIENETH, a child of such tender age and in
extreme pain, to have lied to a doctor whom she trusted with her life. We
therefore accord credence to Gonzales testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners
did, through their negligence or omission to secure or make stable the
counters base.
Gonzales earlier testimony on petitioners insistence to keep and maintain the
structurally unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will
you please describe the gift wrapping counter, were you able to examine?
A Because every morning before I start working I used to clean that counter
and since it is not nailed and it was only standing on the floor, it was shaky.
xxx
Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon
on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the
verification counter. And since the top of it was heavy and considering that it
was not nailed, it can collapse at anytime, since the top is heavy.
xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since Mr.
Maat is fond of putting display decorations on tables, he even told me that I
would put some decorations. But since I told him that it not [sic] nailed and it
is shaky he told me better inform also the company about it. And since the
company did not do anything about the counter, so I also did not do anything
about the counter. [24] [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of
Gonzales, thus:
Q Will you please described [sic] to the honorable Court the counter where
you were assigned in January 1983?
xxx
A That counter assigned to me was when my supervisor ordered me to
carry that counter to another place. I told him that the counter needs nailing
and it has to be nailed because it might cause injury or accident to another
since it was shaky.
Q When that gift wrapping counter was transferred at the second floor on
February 12, 1983, will you please describe that to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic] condition; it
was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the
counter was shaky?
A She told me Why do you have to teach me. You are only my subordinate
and you are to teach me? And she even got angry at me when I told her that.
xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo
or any employee of the management do to that (sic)
xxx
Witness:
None, sir. They never nailed the counter. They only nailed the
counter after the accident happened. [25] [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated
any concrete action to remedy the situation nor ensure the safety of the stores
employees and patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners miserably failed to
discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to
establish that the formers testimonies were biased and tainted with partiality.
Therefore, the allegation that Gonzales and Guevarras testimonies were
blemished by ill feelings against petitioners since they (Gonzales and
Guevarra) were already separated from the company at the time their
testimonies were offered in court was but mere speculation and deserved
scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the
appellate courts will not as a general rule disturb the findings of the trial court,
which is in a better position to determine the same. The trial court has the
distinct advantage of actually hearing the testimony of and observing the
deportment of the witnesses. [26] However, the rule admits of exceptions such
as when its evaluation was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and substance which could
affect the result of the case. [27] In the instant case, petitioners failed to bring
their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive
presumption that favors children below nine (9) years old in that they are
incapable of contributory negligence. In his book, [28] former Judge Cezar S.
Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed
to have acted without discernment, and is, on that account, exempt from
criminal liability. The same presumption and a like exemption from criminal
liability obtains in a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment. Since negligence may
be a felony and a quasi-delict and required discernment as a condition of
liability, either criminal or civil, a child under nine years of age is, by analogy,
conclusively presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in the case of
a child over nine but under fifteen years of age is a rebuttable one, under our
law. The rule, therefore, is that a child under nine years of age must be
conclusively presumed incapable of contributory negligence as a matter of
law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that
she climbed over the counter, no injury should have occurred if we accept
petitioners theory that the counter was stable and sturdy. For if that was the
truth, a frail six-year old could not have caused the counter to collapse. The
physical analysis of the counter by both the trial court and Court of Appeals
and a scrutiny of the evidence [29]on record reveal otherwise, i.e., it was not
durable after all. Shaped like an inverted L, the counter was heavy, huge, and
its top laden with formica. It protruded towards the customer waiting area and
its base was not secured. [30]
CRISELDA too, should be absolved from any contributory negligence. Initially,
ZHIENETH held on to CRISELDAs waist, later to the latters hand. [31]
CRISELDA momentarily released the childs hand from her clutch when she
signed her credit card slip. At this precise moment, it was reasonable and
usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was
pinned down by the counter, she was just a foot away from her mother; and
the gift-wrapping counter was just four meters away from CRISELDA. [32] The
time and distance were both significant. ZHIENETH was near her mother and
did not loiter as petitioners would want to impress upon us. She even admitted
to the doctor who treated her at the hospital that she did not do anything; the
counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and
the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R.
No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
GLAN PEOPLE'S LUMBER AND HARDWARE, vs. INTERMEDIATE
APPELLATE COURT, CECILIA ALFEREZ VDA. DE CALIBO
There is a two-fold message in this judgment that bears stating at the outset.
The first, an obvious one, is that it is the objective facts established by proofs
presented in a controversy that determine the verdict, not the plight of the
persons involved, no matter how deserving of sympathy and commiseration
because, for example, an accident of which they are the innocent victims has
brought them to. reduced circumstances or otherwise tragically altered their
lives. The second is that the doctrine laid done many, many years ago in Picart
vs. Smith 1 continues to be good law to this day.
The facts giving rise to the controversy at bar are tersely and quite accurately
recounted by the Trial Court as follows:2
Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were
on the jeep owned by the Bacnotan Consolidated Industries, Inc., with
Calibo at the wheel, as it approached from the South Lizada Bridge going
towards the direction of Davao City at about 1:45 in the afternoon of July
4,1979. At about that time, the cargo track, loaded with cement bags, GI
sheets, plywood, driven by defendant Paul Zacarias y Infants, coming
from the opposite direction of Davao City and bound for Glan, South
Cotabato, had just crossed said bridge. At about 59 yards after crossing
the bridge, the cargo truck and the jeep collided as a consequence of
which Engineer Calibo died while Roranes and Patos sustained physical
injuries. Zacarias was unhurt. As a result of the impact, the left side of the
truck was slightly damaged while the left side of the jeep, including its
fender and hood, was extensively damaged. After the impact, the jeep
fell and rested on its right side on the asphalted road a few meters to the
rear of the truck, while the truck stopped on its wheels on the road.
On November 27, 1979, the instant case for damages was filed by the
surviving spouse and children of the late Engineer Calibo who are
residents of Tagbilaran City against the driver and owners of the cargo
truck.
For failure to file its answer to the third party complaint, third party
defendant, which insured the cargo truck involved, was declared in
default.
The case filed by the heirs of Engineer Calibo his widow and minor children,
private respondents herein was docketed as
Civil Case No. 3283 of the Court of First Instance of Bohol. 3 Named
defendants in the complaint were "Felix S. Agad, George Lim and Felix Lim .
. . (who) appear to be the co-owners of the Glan People's Lumber and
Hardware . . . (and) Paul Zacarias y Infante." 4 The defendants' answer
however alleged that the lumber and hardware business was exclusively
owned by George Y. Lim, this being evidenced by the Certificate of
Registration issued by the Bureau of Domestic Trade; Fabio S. Agad was not
a co-owner thereof but "merely employed by . . . George Y. Lim as
bookkeeper"; and Felix Lim had no connection whatever with said business,
"he being a child only eight (8) years of age." 5
"After (trial, and) a careful evaluation of the evidence, both testimonial and
documentary," the Court reached the conclusion "that the plaintiffs failed to
establish by preponderance of evidence the negligence, and thus the liability,
of the defendants." Accordingly, the Court dismissed the complaint (and
defendants' counterclaim) "for insufficiency of evidence." Likewise dismissed
was third-party complaint presented by the defendants against the insurer of
the truck. The circumstances leading to the Court's conclusion just mentioned,
are detailed in the Court's decision, as follows:
1. Moments before its collission with the truck being operated by Zacarias,
the jeep of the deceased Calibo was "zigzagging." 6
2. Unlike Zacarias who readily submitted himself to investigation by the
police, Calibo's companions, Roranes (an accountant), and Patos, who
suffered injuries on account of the collision, refused to be so investigated or
give statements to the police officers. This, plus Roranes' waiver of the right
to institute criminal proceedings against Zacarias, and the fact that indeed
no criminal case was ever instituted in Court against Zacarias, were "telling
indications that they did not attribute the happening to defendant Zacarias'
negligence or fault."7
3. Roranes' testimony, given in plaintiffs' behalf, was "not as clear and
detailed as that of . . . Zacarias," and was "uncertain and even contradicted
by the physical facts and the police investigators Dimaano and Esparcia."8
4. That there were skid marks left by the truck's tires at the scene, and none
by the jeep, demonstrates that the driver of the truck had applied the brakes
and the jeep's driver had not; and that the jeep had on impact fallen on its
right side is indication that it was running at high speed. Under the
circumstances, according to the Court, given "the curvature of the road and
the descending grade of the jeep's lane, it was negligence on the part of the
driver of the jeep, Engr. Calibo, for not reducing his speed upon sight of the
truck and failing to apply the brakes as he got within collision range with the
truck."
5. Even if it be considered that there was some antecedent negligence on
the part of Zacarias shortly before the collision, in that he had caused his
truck to run some 25 centimeters to the left of the center of the road, Engr.
Calibo had the last clear chance of avoiding the accident because he still
had ample room in his own lane to steer clear of the truck, or he could simply
have braked to a full stop.
The Court of Appeals saw things differently. It rendered judgment 9 on the
plaintiffs' appeal, l0 reversing the decision of the Trial Court. It found Zacarias
to be negligent on the basis of the following circumstances, to wit:
1) "the truck driven by defendant Zacarias occupied the lane of the jeep
when the collision occurred,' and although Zacarias saw the jeep from a
distance of about 150 meters, he "did not drive his truck back to his lane
in order to avoid collision with the oncoming jeep . . .;" 11 what is worse,
"the truck driver suddenly applied his brakes even as he knew that he
was still within the lane of the jeep;"12 had both vehicles stayed in their
respective lanes, the collision would never have occurred, they would
have passed "along side each other safely;"13
 2) Zacarias had no license at the time; what he handed to Pfc. Esparcia,
on the latter's demand, was the 'driver's license of his co-driver Leonardo
Baricuatro;" 14
3) the waiver of the right to file criminal charges against Zacarias should
not be taken against "plaintiffs" Roranes and Patos who had the right,
under the law, to opt merely to bring a civil suit.15
The Appellate Court opined that Zacarias' negligence "gave rise to the
presumption of negligence on the part of his employer, and their liability is both
primary and solidary." It therefore ordered "the defendants jointly and solidarily
to indemnify the plaintiffs the following amounts:
(1) P30,000.00 for the death of Orlando Calibo;
(2) P378,000.00 for the loss of earning capacity of the deceased
(3) P15,000.00 for attorney's fees;
(4) Cost of suit. 16
The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have
appealed to this Court on certiorari and pray for a reversal of the judgment of
the Intermediate Appellate Court which, it is claimed, ignored or ran counter to
the established facts. A review of the record confirms the merit of this assertion
and persuades this Court that said judgment indeed disregarded facts clearly
and undisputably demonstrated by the proofs. The appealed judgment,
consequently, will have to be reversed.
The finding that "the truck driven by defendant Paul Zacarias occupied the
lane of the jeep when the collision occurred" is a loose one, based on nothing
more than the showing that at the time of the accident, the truck driven by
Zacarias had edged over the painted center line of the road into the opposite
lane by a width of twenty-five (25) centimeters. It ignores the fact that by the
uncontradicted evidence, the actual center line of the road was not that
indicated by the painted stripe but, according to measurements made and
testified by Patrolman Juanita Dimaano, one of the two officers who
investigated the accident, correctly lay thirty-six (36) centimeters farther to the
left of the truck's side of said stripe.
The unimpugned testimony of Patrolman Dimaano, a witness for the private
respondents, is to the effect that the jeep's lane was three (3) meters and
seventy-five (75) centimeters wide, and that of the truck three (3) meters and
three (3) centimeters, measured from the center stripe to the corresponding
side lines or outer edges of the road. 17 The total width of the road being,
therefore, six (6) meters and seventy-eight (78) centimeters, the true center
line equidistant from both side lines would divide the road into two lanes each
three (meters) and thirty-nine (39) centimeters wide. Thus, although it was not
disputed that the truck overrode the painted stripe by twenty-five (25)
centimeters, it was still at least eleven (11) centimeters away from its side of
the true center line of the road and well inside its own lane when the accident
occurred. By this same reckoning, since it was unquestionably the jeep that
rammed into the stopped truck, it may also be deduced that it (the jeep) was
at the time travelling beyond its own lane and intruding into the lane of the
truck by at least the same 11-centimeter width of space.
Not only was the truck's lane, measured from the incorrectly located center
stripe uncomfortably narrow, given that vehicle's width of two (2) meters and
forty-six (46) centimeters; the adjacent road shoulder was also virtually
impassable, being about three (3) inches lower than the paved surface of the
road and "soft--not firm enough to offer traction for safe passage — besides
which, it sloped gradually down to a three foot-deep ravine with a river
below.18 The truck's lane as erroneously demarcated by the center stripe
gave said vehicle barely half a meter of clearance from the edge of the road
and the dangerous shoulder and little room for maneuver, in case this was
made necessary by traffic contingencies or road conditions, if it always kept to
said lane. It being also shown that the accident happened at or near the point
of the truck's approach to a curve,19 which called for extra precautions against
driving too near the shoulder, it could hardly be accounted negligent on the
part of its driver to intrude temporarily, and by only as small as a twenty-five
centimeter wide space (less than ten inches), into the opposite lane in order
to insure his vehicle's safety. This, even supposing that said maneuver was in
fact an intrusion into the opposite lane, which was not the case at all as just
pointed out.
Nor was the Appellate Court correct in finding that Paulino Zacarias had acted
negligently in applying his brakes instead of getting back inside his lane upon
qqqespying the approaching jeep. Being well within his own lane, as has
already been explained, he had no duty to swerve out of the jeep's way as
said Court would have had him do. And even supposing that he was in fact
partly inside the opposite lane, coming to a full stop with the jeep still thirty (30)
meters away cannot be considered an unsafe or imprudent action, there also
being uncontradicted evidence that the jeep was "zigzagging"20 and hence no
way of telling in which direction it would go as it approached the truck.
Also clearly erroneous is the finding of the Intermediate Appellate Court that
Zacarias had no driver's license at the time. The traffic accident report attests
to the proven fact that Zacarias voluntarily surrendered to the investigating
officers his driver's license, valid for 1979, that had been renewed just the day
before the accident, on July 3, 1979.21 The Court was apparently misled by
the circumstance that when said driver was first asked to show his license by
the investigators at the scene of the collision, he had first inadvertently
produced the license of a fellow driver, Leonardo Baricuatro, who had left said
license in Davao City and had asked Zacarias to bring it back to him in Glan,
Cotabato.22
The evidence not only acquits Zacarias of any negligence in the matter; there
are also quite a few significant indicators that it was rather Engineer Calibo's
negligence that was the proximate cause of the accident. Zacarias had told
Patrolman Dimaano at the scene of the collision and later confirmed in his
written statement at the police headquarters 23 that the jeep had been
"zigzagging," which is to say that it was travelling or being driven erratically at
the time. The other investigator, Patrolman Jose Esparcia, also testified that
eyewitnesses to the accident had remarked on the jeep's "zigzagging." 24
There is moreover more than a suggestion that Calibo had been drinking
shortly before the accident. The decision of the Trial Court adverts to further
testimony of Esparcia to the effect that three of Calibo's companions at the
beach party he was driving home from when the collision occurred, who,
having left ahead of him went to the scene when they heard about the
accident, had said that there had been a drinking spree at the party and,
referring to Calibo, had remarked: "Sabi na huag nang mag drive . . . .
pumipilit," (loosely translated, "He was advised not to drive, but he insisted.")
It was Calibo whose driver's license could not be found on his person at the
scene of the accident, and was reported by his companions in the jeep as
having been lost with his wallet at said scene, according to the traffic accident
report, Exhibit "J". Said license unexplainedly found its way into the record
some two years later.
Reference has already been made to the finding of the Trial Court that while
Zacarias readily submitted to interrogation and gave a detailed statement to
the police investigators immediately after the accident, Calibo's two
companions in the jeep and supposed eyewitnesses, Agripino Roranes and
Maximo Patos, refused to give any statements. Furthermore, Roranes who,
together with Patos, had sustained injuries as a result of the collision, waived
his right to file a criminal case against Zacarias. 25
Even, however, ignoring these telltale indicia of negligence on the part of
Calibo, and assuming some antecedent negligence on the part of Zacarias in
failing to keep within his designated lane, incorrectly demarcated as it was, the
physical facts, either expressly found by the Intermediate Appellate Court or
which may be deemed conceded for lack of any dispute, would still absolve
the latter of any actionable responsibility for the accident under the rule of the
last clear chance.
Both drivers, as the Appellate Court found, had had a full view of each other's
vehicle from a distance of one hundred fifty meters. Both vehicles were
travelling at a speed of approximately thirty kilometers per hour. 26 The private
respondents have admitted that the truck was already at a full stop when the
jeep plowed into it. And they have not seen fit to deny or impugn petitioners'
imputation that they also admitted the truck had been brought to a stop while
the jeep was still thirty meters away.27 From these facts the logical conclusion
emerges that the driver of the jeep had what judicial doctrine has appropriately
called the last clear chance to avoid the accident, while still at that distance of
thirty meters from the truck, by stopping in his turn or swerving his jeep away
from the truck, either of which he had sufficient time to do while running at a
speed of only thirty kilometers per hour. In those circumstances, his duty was
to seize that opportunity of avoidance, not merely rely on a supposed right to
expect, as the Appellate Court would have it, the truck to swerve and leave
him a clear path.
The doctrine of the last clear chance provides as valid and complete a defense
to accident liability today as it did when invoked and applied in the 1918 case
of Picart vs. Smith, supra, which involved a similar state of facts. Of those
facts, which should be familiar to every student of law, it is only necessary to
recall the summary made in the syllabus of this Court's decision that:
(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead
he improperly pulled his horse over to the railing on the right. The driver
of the automobile, however guided his car toward the plaintiff without
diminution of speed until he was only few feet away. He then turned to
the right but passed so closely to the horse that the latter being
frightened, jumped around and was killed by the passing car. . . . .
Plaintiff Picart was thrown off his horse and suffered contusions which required
several days of medical attention. He sued the defendant Smith for the value
of his animal, medical expenses and damage to his apparel and obtained
judgment from this Court which, while finding that there was negligence on the
part of both parties, held that that of the defendant was the immediate and
determining cause of the accident and that of the plaintiff ". . . the more remote
factor in the case":
 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.
Since said ruling clearly applies to exonerate petitioner Zacarias and his
employer (and co-petitioner) George Lim, an inquiry into whether or not the
evidence supports the latter's additional defense of due diligence in the
selection and supervision of said driver is no longer necessary and wig not be
undertaken. The fact is that there is such evidence in the record which has not
been controverted.
It must be pointed out, however, that the Intermediate Appellate Court also
seriously erred in holding the petitioners Pablo S. Agad and Felix Lim solidarily
liable for the damages awarded in its appealed decision, as alleged owners,
with petitioner George Lim, of Glan People's Lumber and Hardware, employer
of petitioner Zacarias. This manifestly disregarded, not only the certificate of
registration issued by the Bureau of Domestic Trade identifying Glan People's
Lumber and Hardware as a business name registered by George Lim, 28 but
also unimpugned allegations into the petitioners' answer to the complaint that
Pablo S. Agad was only an employee of George Lim and that Felix Lim, then
a child of only eight (8) years, was in no way connected with the business.
In conclusion, it must also be stated that there is no doubt of this Court's power
to review the assailed decision of the Intermediate Appellate Court under the
authority of precedents recognizing exceptions to the familiar rule binding it to
observe and respect the latter's findings of fact. Many of those exceptions may
be cited to support the review here undertaken, but only the most obvious —
that said findings directly conflict with those of the Trial Court — will suffice.29
In the opinion of this Court and after a careful review of the record, the
evidence singularly fails to support the findings of the Intermediate Appellate
Court which, for all that appears, seem to have been prompted rather by
sympathy for the heirs of the deceased Engineer Calibo than by an objective
appraisal of the proofs and a correct application of the law to the established
facts. Compassion for the plight of those whom an accident has robbed of the
love and support of a husband and father is an entirely natural and
understandable sentiment. It should not, however, be allowed to stand in the
way of, much less to influence, a just verdict in a suit at law.
WHEREFORE, the appealed judgment of the Intermediate Appellate Court is
hereby REVERSED, and the complaint against herein petitioners in Civil Case
No. 3283 of the Court of First Instance of Bohol, Branch IV, is DISMISSED.
No pronouncement as to costs.
EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-
Litem of minors: vs. THE HONORABLE COURT OF APPEALS,
This is a petition for review on certiorari seeking the reversal of the decision of
the respondent Court of Appeals dated February 15, 1989 which reversed and
set aside the decision of the Regional Trial Court of Cavite, Branch XV
ordering the defendants to pay jointly and severally the plaintiffs indemnity for
death and damages; and in further dismissing the complaint insofar as
defendants-appellants Federico del Pilar and Edilberto Montesiano are
concerned; and its resolution dated August 17, 1989 denying the motion for
reconsideration for lack of merit.
The facts giving rise to the controversy at bar are recounted by the trial court
as follows:
At about 6:30 in the morning of April 20, 1983, a collision occurred
between a gravel and sand truck, with Plate No. DAP 717, and a Mazda
passenger bus with Motor No. Y2231 and Plate No. DVT 259 along the
national road at Calibuyo, Tanza, Cavite. The front left side portion
(barandilla) of the body of the truck sideswiped the left side wall of the
passenger bus, ripping off the said wall from the driver's seat to the last
rear seat.
Due to the impact, several passengers of the bus were thrown out and
died as a result of the injuries they sustained, Among those killed were
the following:
1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano
Bustamante and father of plaintiffs Rossel, Gloria, Yolanda, Ericson, and
Ederic, all surnamed Bustamante;
2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and
Patria Jocson;
3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta
Ramos;
4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion
Himaya; and
5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma.
Commemoracion Bersamina. (Rollo, p. 48)
During the incident, the cargo truck was driven by defendant Montesiano and
owned by defendant Del Pilar; while the passenger bus was driven by
defendant Susulin. The vehicle was registered in the name of defendant
Novelo but was owned and/or operated as a passenger bus jointly by
defendants Magtibay and Serrado, under a franchise, with a line from Naic,
Cavite, to Baclaran, Paranaque, Metro Manila, and vice versa, which Novelo
sold to Magtibay on November 8, 1981, and which the latter transferred to
Serrado (Cerrado) on January 18, 1983.
Immediately before the collision, the cargo truck and the passenger bus were
approaching each other, coming from the opposite directions of the highway.
While the truck was still about 30 meters away, Susulin, the bus driver, saw
the front wheels of the vehicle wiggling. He also observed that the truck was
heading towards his lane. Not minding this circumstance due to his belief that
the driver of the truck was merely joking, Susulin shifted from fourth to third
gear in order to give more power and speed to the bus, which was ascending
the inclined part of the road, in order to overtake or pass a Kubota hand tractor
being pushed by a person along the shoulder of the highway. While the bus
was in the process of overtaking or passing the hand tractor and the truck was
approaching the bus, the two vehicles sideswiped each other at each other's
left side. After the impact, the truck skidded towards the other side of the road
and landed on a nearby residential lot, hitting a coconut tree and felling it."
(Rollo, pp. 48-50)
After a careful perusal of the circumstances of the case, the trial court reached
the conclusion "that the negligent acts of both drivers contributed to or
combined with each other in directly causing the accident which led to the
death of the aforementioned persons. It could not be determined from the
evidence that it was only the negligent act of one of them which was the
proximate cause of the collision. In view of this, the liability of the two drivers
for their negligence must be solidary. (Rollo, pp. 50-51) Accordingly, the trial
court rendered a decision on March 7, 1986, the dispositive portion is
hereunder quoted as follows:
WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo
Susulin, Efren Novelo, Federico del Pilar and Edilberto Montesiano are
hereby ordered to pay jointly and severally to the plaintiffs, as follows:
1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum
of P30,000.00 as indemnity for the death of Rogelio Bustamante; U.S.
$127,680.00 as indemnity for the loss of the earning capacity of the said
deceased, at its prevailing rate in pesos at the time this decision shall have
become final and executory; P10,000.00 as moral damages; and P5,000.00
as exemplary damages;
2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as
indemnity for the death of their daughter, Maria Corazon Jocson;
P10,000.00 as moral damages; and P5,000.00 as exemplary damages;
3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as
indemnity for the death of their daughter, Jolet Ramos; P10,000.00 as moral
damages; and P5,000.00 as exemplary damages; and
4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00
as indemnity for the death of their son, Enrico Himaya, P10,000.00 as moral
damages; and P5,000.00 as exemplary damages; and
5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of
P30,000.00 as indemnity for the death of their son, Noel Bersamina,
P10,000.00 as moral damages and P5,000.00 as exemplary damages.
The defendants are also required to pay the plaintiffs the sum of P10,000.00
as attorney's fees and to pay the costs of the suit.
The cross-claim of defendant Novelo is hereby allowed, and defendants
Magtibay and Serrado, the actual owners and/or operators of the passenger
bus concerned, are hereby ordered to indemnify Novelo in such amount as
he may be required to pay as damages to the plaintiffs.
The cross-claims and counter-claims of the other defendants are hereby
dismissed for lack of merit.
SO ORDERED. (pp. 55-57, Rollo)
From said decision, only defendants Federico del Pilar and Edilberto
Montesiano, owner and driver, respectively, of the sand and gravel truck have
interposed an appeal before the respondent Court of Appeals. The Court of
Appeals decided the appeal on a different light. It rendered judgment on
February 15, 1989, to wit:
WHEREFORE, the appealed judgment is hereby REVERSED and SET
ASIDE and the complaint dismissed insofar as defendants-appellants
Federico del Pilar and Edilberto Montesiano are concerned. No costs in
this instance.
SO ORDERED. (p. 96, Rollo)
On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of
the aforementioned Court of Appeals' decision. However, respondent Court of
Appeals in a resolution dated August 17, 1989 denied the motion for lack of
merit. Hence, this petition.
Petitioners raised the following questions of law, namely:
First. Whether the respondent Court can legally and validly absolve
defendants-appellants from liability despite its own finding, as well as that
of the trial court that defendant-appellant Edilberto Montesiano, the cargo
truck driver, was driving an old vehicle very fast, with its wheels already
wiggling, such that he had no more control of his truck.
Second. Whether the respondent court can validly and legally disregard
the findings of fact made by the trial court which was in a better position
to observe the conduct and demeanor of the witnesses, particularly
appellant Edilberto Montesiano, cargo truck driver, and which
conclusively found appellant Montesiano as jointly and severally
negligent in driving his truck very fast and had lost control of his truck.
Third. Whether the respondent court has properly and legally applied the
doctrine of "last clear chance" in the present case despite its own finding
that appellant cargo truck driver Edilberto Montesiano was admittedly
negligent in driving his cargo truck very fast on a descending road and in
the presence of the bus driver coming from the opposite direction.
Fourth. Whether the respondent court has applied the correct law and the
correct doctrine so as to reverse and set aside the judgment with respect
to defendants-appellants. (Rollo, pp. 133-134)
As a rule, findings of fact of the Court of Appeals are final and conclusive and
cannot be reviewed on appeal, provided, they are borne out by the record or
are based on substantial evidence However, this rule admits of certain
exceptions, as when the findings of facts are conclusions without citation of
specific evidence on which they are based; or the appellate court's findings
are contrary to those of the trial court. (Sese v. Intermediate Appellate Court,
G.R. 66168, 31 July 1987, 152 SCRA 585).
Furthermore, only questions of law may be raised in a petition for review on
certiorari under Rule 45 of the Revised Rules of Court. The jurisdiction of the
Supreme Court in cases brought to it from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive. It is not the function of the Supreme Court to analyze or weigh
such evidence all over again, its jurisdiction being limited to reviewing errors
of law that might have been committed. Barring, therefore, a showing that the
findings complained of are totally devoid of support in the records, or that they
are so glaringly erroneous as to constitute serious abuse of discretion, such
findings must stand for the Supreme Court is not expected or required to
examine or contrast the oral and documentary evidence submitted by the
parties. (Andres v. Manufacturers Hanover and Trust Corp., G.R. 82670, 15
September 1989, 177 SCRA 618).
Bearing in mind these basic principles, We have opted to re-examine the
findings of fact mainly because the appellate court's findings are contrary to
those of the trial court.
The trial court, in declaring that the negligent acts of both drivers directly
caused the accident which led to the death of the aforementioned persons,
considered the following:
It was negligent on the part of driver Montesiano to have driven his truck
fast, considering that it was an old vehicle, being a 1947 model as
admitted by its owner, defendant Del Pilar; that its front wheels were
wiggling; that the road was descending; and that there was a passenger
bus approaching it. Likewise, driver Susulin was also guilty of negligence
in not taking the necessary precaution to avoid the collision, in the light
of his admission that, at a distance of 30 meters, he already saw the front
wheels of the truck wiggling and that the vehicle was usurping his lane
coming towards his direction. Had he exercised ordinary prudence, he
could have stopped his bus or swerved it to the side of the road even
down to its shoulder. And yet, Susulin shifted to third gear so as to, as
claimed by him, give more power and speed to his bus in overtaking or
passing a hand tractor which was being pushed along the shoulder of the
road. (Rollo, p. 50)
The respondent Court of Appeals ruling on the contrary, opined that "the bus
driver had the last clear chance to avoid the collision and his reckless
negligence in proceeding to overtake the hand tractor was the proximate
cause of the collision." (Rollo, p. 95). Said court also noted that "the record
also discloses that the bus driver was not a competent and responsible driver.
His driver's license was confiscated for a traffic violation on April 17, 1983 and
he was using a ticket for said traffic violation on the day of the accident in
question (pp. 16-18, TSN, July 23, 1984). He also admitted that he was not a
regular driver of the bus that figured in the mishap and was not given any
practical examination. (pp. 11, 96, TSN, supra)." (Rollo, p96)
The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR,
August 28, 1975 held that "We are not prepared to uphold the trial court's
finding that the truck was running fast before the impact. The national road,
from its direction, was descending. Courts can take judicial notice of the fact
that a motor vehicle going down or descending is more liable to get out of
control than one that is going up or ascending for the simple reason that the
one which is going down gains added momentum while that which is going up
loses its initial speeding in so doing."
On the other hand, the trial court found and We are convinced that the cargo
truck was running fast. It did not overlook the fact that the road was descending
as in fact it mentioned this circumstance as one of the factors disregarded by
the cargo truck driver along with the fact that he was driving an old 1947 cargo
truck whose front wheels are already wiggling and the fact that there is a
passenger bus approaching it. In holding that the driver of the cargo truck was
negligent, the trial court certainly took into account all these factors so it was
incorrect for the respondent court to disturb the factual findings of the trial
court, which is in a better position to decide the question, having heard the
witness themselves and observed their deportment.
The respondent court adopted the doctrine of "last clear chance." The
doctrine, stated broadly, is that the negligence of the plaintiff does not preclude
a recovery for the negligence of the defendant where it appears that the
defendant, by exercising reasonable care and prudence, might have avoided
injurious consequences to the plaintiff notwithstanding the plaintiff's
negligence. In other words, the doctrine of last clear chance means that even
though a person's own acts may have placed him in a position of peril, and an
injury results, the injured person is entitled to recovery. As the doctrine is
usually stated, a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts of his opponent or
that of a third person imputed to the opponent is considered in law solely
responsible for the consequences of the accident. (Sangco, Torts and
Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held liable
to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in
placing himself in peril, if he, aware of the plaintiffs peril, or according to some
authorities, should have been aware of it in the reasonable exercise of due
case, had in fact an opportunity later than that of the plaintiff to avoid an
accident (57 Am. Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate
Appellate Court, et al. (G.R. Nos. 66102-04, August 30, 1990), the Court citing
the landmark decision held in the case of Anuran, et al. v. Buno, et al. (123
Phil. 1073) ruled that the principle of "last clear chance" applies "in a suit
between the owners and drivers of colliding vehicles. It does not arise where
a passenger demands responsibility from the carrier to enforce its contractual
obligations. For it would be inequitable to exempt the negligent driver of the
jeepney and its owners on the ground that the other driver was likewise guilty
of negligence."
Furthermore, "as between defendants: The doctrine cannot be extended into
the field of joint tortfeasors as a test of whether only one of them should be
held liable to the injured person by reason of his discovery of the latter's peril,
and it cannot be invoked as between defendants concurrently negligent. As
against third persons, a negligent actor cannot defend by pleading that another
had negligently failed to take action which could have avoided the injury." (57
Am. Jur. 2d, pp. 806-807).
All premises considered, the Court is convinced that the respondent Court
committed an error of law in applying the doctrine of last clear chance as
between the defendants, since the case at bar is not a suit between the owners
and drivers of the colliding vehicles but a suit brought by the heirs of the
deceased passengers against both owners and drivers of the colliding
vehicles. Therefore, the respondent court erred in absolving the owner and
driver of the cargo truck from liability.
Pursuant to the new policy of this Court to grant an increased death indemnity
to the heirs of the deceased, their respective awards of P30,000.00 are hereby
increased to P50,000.00.
ACCORDINGLY, the petition is GRANTED; the appealed judgment and
resolution of the Court of Appeals are hereby REVERSED and SET ASIDE
and the judgment of the lower court is REINSTATED with the modification on
the indemnity for death of each of the victims which is hereby increased to
P50,000.00 each. No pronouncement as to costs.
SO ORDERED.
PHILIPPINE RABBIT BUS LINES, INC., petitioner,
vs. THE HONORABLE INTERMEDIATE APPELLATE COURT
This is a petition for review on certiorari of the decision of the Intermediate
Appellate Court (now Court of Appeals) dated July 29, 1983 in AC-G.R. Nos.
CV-65885, CV-65886 and CV-65887 which reversed the decision of the Court
of First Instance (now Regional Trial Court) of Pangasinan dated December
27, 1978; and its resolution dated November 28, 1983 denying the motion for
reconsideration.
It is an established principle that the factual findings of the Court of Appeals
are final and may not be reviewed by this Court on appeal. However, this
principle is subject to certain exceptions. One of these is when the findings of
the appellate court are contrary to those of the trial court (see Sabinosa v. The
Honorable Court of Appeals, et al., G.R. No. L-47981, July 24, 1989) in which
case, a re-examination of the facts and evidence may be undertaken. This is
Our task now.
The antecedent facts are as follows:
About 11:00 o'clock in the morning on December 24, 1966, Catalina Pascua,
Caridad Pascua, Adelaida Estomo, Erlinda Meriales, Mercedes Lorenzo,
Alejandro Morales and Zenaida Parejas boarded the jeepney owned by
spouses Isidro Mangune and Guillerma Carreon and driven by Tranquilino
Manalo at Dau, Mabalacat, Pampanga bound for Carmen, Rosales,
Pangasinan to spend Christmas at their respective homes. Although they
usually ride in buses, they had to ride in a jeepney that day because the buses
were full. Their contract with Manalo was for them to pay P24.00 for the trip.
The private respondents' testimonial evidence on this contractual relationship
was not controverted by Mangune, Carreon and Manalo, nor by Filriters
Guaranty Assurance Corporation, Inc., the insurer of the jeepney, with
contrary evidence. Purportedly riding on the front seat with Manalo was
Mercedes Lorenzo. On the left rear passenger seat were Caridad Pascua,
Alejandro Morales and Zenaida Parejas. On the right rear passenger seat
were Catalina Pascua, Adelaida Estomo, and Erlinda Meriales. After a brief
stopover at Moncada, Tarlac for refreshment, the jeepney proceeded towards
Carmen, Rosales, Pangasinan.
Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of
the jeepney was detached, so it was running in an unbalanced position.
Manalo stepped on the brake, as a result of which, the jeepney which was
then running on the eastern lane (its right of way) made a U-turn, invading and
eventually stopping on the western lane of the road in such a manner that the
jeepney's front faced the south (from where it came) and its rear faced the
north (towards where it was going). The jeepney practically occupied and
blocked the greater portion of the western lane, which is the right of way of
vehicles coming from the north, among which was Bus No. 753 of petitioner
Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas delos Reyes.
Almost at the time when the jeepney made a sudden U-turn and encroached
on the western lane of the highway as claimed by Rabbit and delos Reyes, or
after stopping for a couple of minutes as claimed by Mangune, Carreon and
Manalo, the bus bumped from behind the right rear portion of the jeepney. As
a result of the collision, three passengers of the jeepney (Catalina Pascua,
Erlinda Meriales and Adelaida Estomo) died while the other jeepney
passengers sustained physical injuries. What could have been a festive
Christmas turned out to be tragic.
The causes of the death of the three jeepney passengers were as follows (p.
101, Record on Appeal):
The deceased Catalina Pascua suffered the following injuries, to wit:
fracture of the left parietal and temporal regions of the skull; fracture of the
left mandible; fracture of the right humenous; compound fracture of the left
radious and ullma middle third and lower third; fracture of the upper third of
the right tibia and fillnea; avulsion of the head, left internal; and multiple
abrasions. The cause of her death was shock, secondary to fracture and
multiple hemorrhage. The fractures were produced as a result of the hitting
of the victim by a strong force. The abrasions could be produced when a
person falls from a moving vehicles (sic) and rubs parts of her body against
a cement road pavement. . . .
Erlinda Mariles (sic) sustained external lesions such as contusion on the left
parietal region of the skull; hematoma on the right upper lid; and abrasions
(sic) on the left knee. Her internal lesions were: hematoma on the left thorax;
multiple lacerations of the left lower lobe of the lungs; contusions on the left
lower lobe of the lungs; and simple fractures of the 2nd, 3rd, 4th, 5th, 6th,
7th, and 8th ribs, left. The forcible impact of the jeep caused the above
injuries which resulted in her death. . . .
The cause of death of Erlinda or Florida Estomo (also called as per
autopsy of Dr. Panlasiqui was due to shock due to internal
hemorrhage, ruptured spleen and trauma. . . .
Caridad Pascua suffered physical injuries as follows (p. 101, Record on
Appeal):
. . . lacerated wound on the forehead and occipital region, hematoma on
the forehead, multiple abrasions on the forearm, right upper arm, back
and right leg. . . .
The police investigators of Tacpal and policemen of San Manuel, Tarlac,
Tarlac, upon arrival at the scene of the mishap, prepared a sketch (common
exhibit "K" for private respondents "19" for Rabbit) showing the relative
positions of the two vehicles as well as the alleged point of impact (p. 100,
Record on Appeal):
. . . The point of collision was a cement pave-portion of the Highway, about
six (6) meters wide, with narrow shoulders with grasses beyond which are
canals on both sides. The road was straight and points 200 meters north
and south of the point of collision are visible and unobstructed. Purportedly,
the point of impact or collision (Exh. "K-4", Pascua on the sketch Exh. "K"-
Pascua) was on the western lane of the highway about 3 feet (or one yard)
from the center line as shown by the bedris (sic), dirt and soil (obviously
from the undercarriage of both vehicles) as well as paint, marron (sic) from
the Rabbit bus and greenish from the jeepney. The point of impact encircled
and marked with the letter "X" in Exh. "K"-4 Pascua, had a diameter of two
meters, the center of which was about two meters from the western edge of
cement pavement of the roadway. Pictures taken by witness Bisquera in the
course of the investigation showed the relative positions of the point of
impact and center line (Exh. "P"-Pascua) the back of the Rabbit bus (Exh.
"P"-1-Pascua"), the lifeless body of Catalina Pascua (Exh. "P-2 Pascua"),
and the damaged front part of the Rabbit bus (Exh. "P-3 Pascua"). No skid
marks of the Rabbit bus was found in the vicinity of the collision, before or
after the point of impact. On the other hand, there was a skid mark about
45 meters long purportedly of the jeepney from the eastern shoulder of the
road south of, and extending up to the point of impact.
At the time and in the vicinity of the accident, there were no vehicles following
the jeepney, neither were there oncoming vehicles except the bus. The
weather condition of that day was fair.
After conducting the investigation, the police filed with the Municipal Court of
San Manuel, Tarlac, a criminal complaint against the two drivers for Multiple
Homicide. At the preliminary investigation, a probable cause was found with
respect to the case of Manalo, thus, his case was elevated to the Court of First
Instance. However, finding no sufficiency of evidence as regards the case of
delos Reyes, the Court dismissed it. Manalo was convicted and sentenced to
suffer imprisonment. Not having appealed, he served his sentence.
Complaints for recovery of damages were then filed before the Court of First
Instance of Pangasinan. In Civil Case No. 1136, spouses Casiano Pascua and
Juana Valdez sued as heirs of Catalina Pascua while Caridad Pascua sued in
her behalf. In Civil Case No. 1139, spouses Manuel Millares and Fidencia
Arcica sued as heirs of Erlinda Meriales. In Civil Case No. 1140, spouses
Mariano Estomo and Dionisia Sarmiento also sued as heirs of Adelaida
Estomo.
In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos
Reyes were all impleaded as defendants. Plaintiffs anchored their suits
against spouses Mangune and Carreon and Manalo on their contractual
liability. As against Rabbit and delos Reyes, plaintiffs based their suits on their
culpability for a quasi-delict. Filriters Guaranty Assurance Corporation, Inc.
was also impleaded as additional defendant in Civil Case No. 1136 only.
For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to
collect the aggregate amount of P70,060.00 in damages, itemized as follows:
P500.00 for burial expenses; P12,000.00 for loss of wages for 24 years;
P10,000.00 for exemplary damages; P10,000.00 for moral damages; and
P3,000.00 for attorney's fees. In the same case, plaintiff Caridad Pascua
claimed P550.00 for medical expenses; P240.00 for loss of wages for two
months; P2,000.00 for disfigurement of her face; P3,000.00 for physical pain
and suffering; P2,500.00 as exemplary damages and P2,000.00 for attorney's
fees and expenses of litigation.
In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses;
P6,000.00 for the death of Erlinda, P63,000.00 for loss of income; P10,000.00
for moral damages and P3,000.00 for attorney's fees or total of P80,000.00.
In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses;
P6,000.00 for the death of Adelaide, P56,160.00 for loss of her income or
earning capacity; P10,000.00 for moral damages; and P3,000.00 for attorney's
fees.
Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees and
expenses of litigation. On the other hand, spouses Mangune and Carreon filed
a cross-claim in the amount of P6,168.00 for the repair of the jeepney and
P3,000.00 for its non-use during the period of repairs.
On December 27, 1978, the trial court rendered its decision finding Manalo
negligent, the dispositive portion of which reads (pp. 113-114, Record on
Appeal):
PREMISES CONSIDERED, this Court is of the opinion and so holds:
1) That defendants Isidro Mangune, Guillerma Carreon and Tranquilino
Manalo thru their negligence, breached contract of carriage with their
passengers the plaintiffs' and/or their heirs, and this Court renders judgment
ordering said defendants, jointly and severally, to pay the plaintiffs —
a) In Civil Case No. 1136, for the death of Catalina Pascua, to pay her heirs
the amounts of P12,000.00 for indemnity for loss of her life; P41,760.00 for
loss of earnings; P324.40 for actual expenses and P2,000.00 for moral
damages;
 b) In the same Civil Case No.1136 for the injuries of Caridad Pascua, to pay
her the amounts of P240.00 for loss of wages, P328.20 for actual expenses
and P500.00 for moral damages;
c) In Civil Case No.1139 for the death of Erlinda Meriales, to pay her heirs
(the plaintiffs) the amount of P12,000.00 — for indemnity for loss of her life;
P622.00 for actual expenses, P60,480.00 for loss of wages or income and
P2,000.00 for moral damages;
d) In Civil Case No. 1140, for the death of Erlinda (also called Florida or
Adelaida Estomo), to pay her heirs (the plaintiff the amount of P12,000.00
for indemnity for the loss of her life; P580.00 for actual expenses;
P53,160.00 for loss of wages or income and P2,000.00 for moral damages.
2) The defendant Filriters Guaranty Insurance Co., having contracted to
ensure and answer for the obligations of defendants Mangune and Carreon
for damages due their passengers, this Court renders judgment against the
said defendants Filriters Guaranty Insurance Co., jointly and severally with
said defendants (Mangune and Carreon) to pay the plaintiffs the amount
herein above adjudicated in their favor in Civil Case No. 1136 only. All the
amounts awarded said plaintiff, as set forth in paragraph one (1)
hereinabove;
3) On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the defendant,
Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to pay jointly
and severally, cross-claimant Phil. Rabbit Bus Lines, Inc., the amounts of
P216.27 as actual damages to its Bus No. 753 and P2,173.60 for loss of its
earning.
All of the above amount, shall bear legal interest from the filing of the
complaints.
Costs are adjudged against defendants Mangune, Carreon and Manalo and
Filriters Guaranty.
SO ORDERED
On appeal, the Intermediate Appellate Court reversed the above-quoted
decision by finding delos Reyes negligent, the dispositive portion of which
reads (pp. 55-57, Rollo):
WHEREFORE, PREMISES CONSIDERED, the lower court's decision is
hereby REVERSED as to item No. 3 of the decision which reads:
3) On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the
defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo,
to pay jointly and severally, the amounts of P216.27 as actual damages
to its Bus No. 753 and P2,173.60 for loss of its earnings.
and another judgment is hereby rendered in favor of plaintiffs-appellants
Casiana Pascua, Juan Valdez and Caridad Pascua, ordering the
Philippine Rabbit Bus Lines, Inc. and its driver Tomas delos Reyes to pay
the former jointly and severally damages in amounts awarded as follows:
For the death of Catalina Pascua, the parents and/or heirs are awarded
Civil Case No. 1136 —
a) Indemnity for the loss of life — P12,000.00
b) Loss of Salaries or earning capacity — 14,000.00
c) Actual damages (burial expenses) — 800.00
d) For moral damages — 10,000.00
e) Exemplary damages — 3,000.00
f) For attorney's fees — 3,000.00
—————
Total — P38,200.00 (sic)
For the physical injuries suffered by Caridad Pascua:
Civil Case No. 1136
a) Actual damages (hospitalization expenses) — P550.00
b) Moral damages (disfigurement of the
face and physical suffering — 8,000.00
c) Exemplary damages — 2,000.00
—————
Total — P10,550.00
For the death of Erlinda Arcega Meriales. the parents and/or heirs:
Civil Case No. 1139
a) Indemnity for loss of life — P12,000.00
b) Loss of Salary or Earning Capacity — 20,000.00
c) Actual damages (burial expenses) — 500.00
d) Moral damages — 15,000.00
e) Exemplary damages — 15,000.00
f) Attorney's fees — 3,000.00
—————
Total — P65,500.00
For the death of Florida Sarmiento Estomo:
Civil Case No. 1140
a) Indemnity for loss of life — P12,000.00
b) Loss of Salary or Earning capacity — 20,000.00
c) Actual damages (burial expenses) — 500.00
d) Moral damages — 3,000.00
e) Exemplary damages — 3,000.00
f) Attorney's fees — 3,000.00
—————
Total — P41,500.00
With costs against the Philippine Rabbit Bus Lines, Inc.
SO ORDERED.
The motion for reconsideration was denied. Hence, the present
petition.
The issue is who is liable for the death and physical injuries suffered by the
passengers of the jeepney?
The trial court, in declaring that Manalo was negligent, considered the
following (p. 106, Record on Appeal):
(1) That the unrebutted testimony of his passenger plaintiff Caridad Pascua
that a long ways (sic) before reaching the point of collision, the Mangune
jeepney was "running fast" that his passengers cautioned driver Manalo to
slow down but did not heed the warning: that the right rear wheel was
detached causing the jeepney to run to the eastern shoulder of the road
then back to the concrete pavement; that driver Manalo applied the brakes
after which the jeepney made a U-turn (half-turn) in such a manner that it
inverted its direction making it face South instead of north; that the jeepney
stopped on the western lane of the road on the right of way of the oncoming
Phil. Rabbit Bus where it was bumped by the latter;
(2) The likewise unrebutted testimony of Police Investigator Tacpal of the
San Manuel (Tarlac) Police who, upon responding to the reported collission,
found the real evidence thereat indicate in his sketch (Exh. K, Pascua ), the
tracks of the jeepney of defendant Mangune and Carreon running on the
Eastern shoulder (outside the concrete paved road) until it returned to the
concrete road at a sharp angle, crossing the Eastern lane and the
(imaginary) center line and encroaching fully into the western lane where
the collision took place as evidenced by the point of impact;
(3) The observation of witness Police Corporal Cacalda also of the San
Manuel Police that the path of the jeepney they found on the road and
indicated in the sketch (Exh. K-Pascua) was shown by skid marks which he
described as "scratches on the road caused by the iron of the jeep, after its
wheel was removed;"
(4) His conviction for the crime of Multiple Homicide and Multiple Serious
Physical Injuries with Damage to Property thru Reckless Imprudence by the
Court of First Instance of Tarlac (Exh. 24-Rabbit) upon the criminal
Information by the Provincial Fiscal of Tarlac (Exh. 23-Rabbit), as a result
of the collision, and his commitment to prison and service of his sentence
(Exh. 25-Rabbit) upon the finality of the decision and his failure to appeal
therefrom; and
(5) The application of the doctrine of res-ipsa loquitar (sic) attesting to the
circumstance that the collision occured (sic) on the right of way of the Phil.
Rabbit Bus.
The respondent court had a contrary opinion. Applying primarily (1) the
doctrine of last clear chance, (2) the presumption that drivers who bump the
rear of another vehicle guilty and the cause of the accident unless contradicted
by other evidence, and (3) the substantial factor test. concluded that delos
Reyes was negligent.
The misappreciation of the facts and evidence and the misapplication of the
laws by the respondent court warrant a reversal of its questioned decision and
resolution.
We reiterate that "[t]he principle about "the last clear" chance, would call for
application in a suit between the owners and drivers of the two colliding
vehicles. It does not arise where a passenger demands responsibility from the
carrier to enforce its contractual obligations. For it would be inequitable to
exempt the negligent driver of the jeepney and its owners on the ground that
the other driver was likewise guilty of negligence." This was Our ruling in
Anuran, et al. v. Buño et al., G.R. Nos. L-21353 and L-21354, May 20, 1966,
17 SCRA 224. 1 Thus, the respondent court erred in applying said doctrine.
On the presumption that drivers who bump the rear of another vehicle guilty
and the cause of the accident, unless contradicted by other evidence, the
respondent court said (p. 49, Rollo):
. . . the jeepney had already executed a complete turnabout and at the
time of impact was already facing the western side of the road. Thus the
jeepney assumed a new frontal position vis a vis, the bus, and the bus
assumed a new role of defensive driving. The spirit behind the
presumption of guilt on one who bumps the rear end of another vehicle
is for the driver following a vehicle to be at all times prepared of a pending
accident should the driver in front suddenly come to a full stop, or change
its course either through change of mind of the front driver, mechanical
trouble, or to avoid an accident. The rear vehicle is given the
responsibility of avoiding a collision with the front vehicle for it is the rear
vehicle who has full control of the situation as it is in a position to observe
the vehicle in front of it.
The above discussion would have been correct were it not for the undisputed
fact that the U-turn made by the jeepney was abrupt (Exhibit "K," Pascua). The
jeepney, which was then traveling on the eastern shoulder, making a straight,
skid mark of approximately 35 meters, crossed the eastern lane at a sharp
angle, making a skid mark of approximately 15 meters from the eastern
shoulder to the point of impact (Exhibit "K" Pascua). Hence, delos Reyes could
not have anticipated the sudden U-turn executed by Manalo. The respondent
court did not realize that the presumption was rebutted by this piece of
evidence.
With regard to the substantial factor test, it was the opinion of the respondent
court that (p. 52, Rollo):
. . . It is the rule under the substantial factor test that if the actor's conduct
is a substantial factor in bringing about harm to another, the fact that the
actor neither foresaw nor should have foreseen the extent of the harm or
the manner in which it occurred does not prevent him from being liable
(Restatement, Torts, 2d). Here, We find defendant bus running at a fast
speed when the accident occurred and did not even make the slightest effort
to avoid the accident, . . . . The bus driver's conduct is thus a substantial
factor in bringing about harm to the passengers of the jeepney, not only
because he was driving fast and did not even attempt to avoid the mishap
but also because it was the bus which was the physical force which brought
about the injury and death to the passengers of the jeepney.
The speed of the bus was calculated by respondent court as follows (pp. 54-
55, Rollo):
According to the record of the case, the bus departed from Laoag, Ilocos
Norte, at 4:00 o'clock A.M. and the accident took place at approximately
around 12:30 P.M., after travelling roughly for 8 hours and 30 minutes.
Deduct from this the actual stopover time of two Hours (computed from the
testimony of the driver that he made three 40-minute stop-overs), We will
have an actual travelling time of 6 hours and 30 minutes.
Under the circumstances, We calculate that the Laoag-Tarlac route (365
kms.) driving at an average of 56 km. per hour would take 6 hours and 30
minutes. Therefore, the average speed of the bus, give and take 10 minutes,
from the point of impact on the highway with excellent visibility factor would
be 80 to 90 kms. per hour, as this is the place where buses would make up
for lost time in traversing busy city streets.
Still, We are not convinced. It cannot be said that the bus was travelling at a
fast speed when the accident occurred because the speed of 80 to 90
kilometers per hour, assuming such calculation to be correct, is yet within the
speed limit allowed in highways. We cannot even fault delos Reyes for not
having avoided the collision. As aforestated, the jeepney left a skid mark of
about 45 meters, measured from the time its right rear wheel was detached
up to the point of collision. Delos Reyes must have noticed the perilous
condition of the jeepney from the time its right rear wheel was detached or
some 90 meters away, considering that the road was straight and points 200
meters north and south of the point of collision, visible and unobstructed. Delos
Reyes admitted that he was running more or less 50 kilometers per hour at
the time of the accident. Using this speed, delos Reyes covered the distance
of 45 meters in 3.24 seconds. If We adopt the speed of 80 kilometers per hour,
delos Reyes would have covered that distance in only 2.025 seconds. Verily,
he had little time to react to the situation. To require delos Reyes to avoid the
collision is to ask too much from him. Aside from the time element involved,
there were no options available to him. As the trial court remarked (pp. 107-
108, Record on Appeal):
. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes,
could have taken either of two options: (1) to swerve to its right (western
shoulder) or (2) to swerve to its left (eastern lane), and thus steer clear of
the Mangune jeepney. This Court does not so believe, considering the
existing exigencies of space and time.
As to the first option, Phil. Rabbit's evidence is convincing and unrebutted
that the Western shoulder of the road was narrow and had tall grasses
which would indicate that it was not passable. Even plaintiffs own evidence,
the pictures (Exhs. P and P-2, Pascua) are mute confirmation of such fact.
Indeed, it can be noticed in the picture (Exh. P-2, Pascua) after the Rabbit
bus came to a full stop, it was tilted to right front side, its front wheels resting
most probably on a canal on a much lower elevation that of the shoulder or
paved road. It too shows that all of the wheels of the Rabbit bus were clear
of the roadway except the outer left rear wheel. These observation
appearing in said picture (Exh P-2, Pascua) clearly shows coupled with the
finding the Rabbit bus came to a full stop only five meters from the point of
impact (see sketch, Exh. K-Pascua) clearly show that driver de los Reyes
veered his Rabbit bus to the right attempt to avoid hitting the Mangune's
jeepney. That it was not successful in fully clearing the Mangune jeepney
as its (Rabbit's) left front hit said jeepney (see picture Exh. 10-A-Rabbit)
must have been due to limitations of space and time.
Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus
could also have swerved to its left (eastern lane) to avoid bumping the
Mangune jeepney which was then on the western lane. Such a claim is
premised on the hypothesis (sic) that the eastern lane was then empty.
This claim would appear to be good copy of it were based alone on the
sketch made after the collision. Nonetheless, it loses force it one were to
consider the time element involved, for moments before that, the
Mangune jeepney was crossing that very eastern lane at a sharp angle.
Under such a situation then, for driver delos Reyes to swerve to the
eastern lane, he would run the greater risk of running smack in the
Mangune jeepney either head on or broadside.
After a minute scrutiny of the factual matters and duly proven evidence, We
find that the proximate cause of the accident was the negligence of Manalo
and spouses Mangune and Carreon. They all failed to exercise the
precautions that are needed precisely pro hac vice.
In culpa contractual, the moment a passenger dies or is injured, the carrier is
presumed to have been at fault or to have acted negligently, and this
disputable presumption may only be overcome by evidence that he had
observed extra-ordinary diligence as prescribed in Articles 1733, 1755 and
1756 of the New Civil Code 2 or that the death or injury of the passenger was
due to a fortuitous event 3 (Lasam v. Smith, Jr., 45 Phil. 657).
The negligence of Manalo was proven during the trial by the unrebutted
testimonies of Caridad Pascua, Police Investigator Tacpal, Police Corporal
Cacalda, his (Manalo's) conviction for the crime of Multiple Homicide and
Multiple Serious Injuries with Damage to Property thru Reckless Imprudence,
and the application of the doctrine of res ipsa loquitur supra. The negligence
of spouses Mangune and Carreon was likewise proven during the trial (p. 110,
Record on Appeal):
To escape liability, defendants Mangune and Carreon offered to show
thru their witness Natalio Navarro, an alleged mechanic, that he
periodically checks and maintains the jeepney of said defendants, the
last on Dec. 23, the day before the collision, which included the
tightening of the bolts. This notwithstanding the right rear wheel of the
vehicle was detached while in transit. As to the cause thereof no
evidence was offered. Said defendant did not even attempt to explain,
much less establish, it to be one caused by a caso fortuito. . . .
In any event, "[i]n an action for damages against the carrier for his failure to
safely carry his passenger to his destination, an accident caused either by
defects in the automobile or through the negligence of its driver, is not a
caso fortuito which would avoid the carriers liability for damages (Son v.
Cebu Autobus Company, 94 Phil. 892 citing Lasam, et al. v. Smith, Jr., 45
Phil. 657; Necesito, etc. v. Paras, et al., 104 Phil. 75).
The trial court was therefore right in finding that Manalo and spouses Mangune
and Carreon were negligent. However, its ruling that spouses Mangune and
Carreon are jointly and severally liable with Manalo is erroneous The driver
cannot be held jointly and severally liable with the carrier in case of breach of
the contract of carriage. The rationale behind this is readily discernible. Firstly,
the contract of carriage is between the carrier and the passenger, and in the
event of contractual liability, the carrier is exclusively responsible therefore to
the passenger, even if such breach be due to the negligence of his driver (see
Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966,
16 SCRA 742). In other words, the carrier can neither shift his liability on the
contract to his driver nor share it with him, for his driver's negligence is his. 4
Secondly, if We make the driver jointly and severally liable with the carrier, that
would make the carrier's liability personal instead of merely vicarious and
consequently, entitled to recover only the share which corresponds to the
driver, 5 contradictory to the explicit provision of Article 2181 of the New Civil
Code. 6
We affirm the amount of damages adjudged by the trial court, except with
respect to the indemnity for loss of life. Under Article 1764 in relation to Article
2206 of the New Civil Code, the amount of damages for the death of a
passenger is at least three thousand pesos (P3,000.00). The prevailing
jurisprudence has increased the amount of P3,000.00 to P30,000.00 (see
Heirs of Amparo delos Santos, et al. v. Honorable Court of Appeals, et al.,
G.R. No. 51165, June 21, 1990 citing De Lima v. Laguna Tayabas Co., G.R.
Nos. L-35697-99, April 15, 1988, 160 SCRA 70).
ACCORDINGLY, the petition is hereby GRANTED. The decision of the
Intermediate Appellate Court dated July 29, 1983 and its resolution dated
November 28, 1983 are SET ASIDE. The decision of the Court of First
Instance dated December 27, 1978 is REINSTATED MODIFICATION that
only Isidro Mangune, Guillerma Carreon and Filriters Guaranty Assurance
Corporation, Inc. are liable to the victims or their heirs and that the amount of
indemnity for loss of life is increased to thirty thousand pesos (P30,000.00).
SO ORDERED.