Topic: Introduction Wherefore, the Court hereby renders judgment in favor of the

plaintiff by ordering the defendant to pay to the plaintiff the

Republic of the Philippines
 sum of Five Thousand Pesos (P5,000.00) for the death of his
SUPREME COURT
 son, Manuel Saynes; the sum of One Thousand Two Hundred
Manila Pesos (P1,200.00) for actual expenses for and in connection
with the burial of said deceased child, and the further sum of
FIRST DIVISION Three Thousand Pesos (P3,000.00) for moral damages and Five
Hundred (P500.00) Pesos as reasonable attorney's fee, or a total
G.R. No. L-40570 January 30, 1976 of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to
pay the costs of this suit. It Is So Ordered. Undisputed facts
TEODORO C. UMALI, petitioner, 

appearing of record are:
vs.

HON. ANGEL BACANI, in his capacity as Presiding Judge On May 14, 1972, a storm with strong rain hit the Municipality
of Branch IX of the Court of First Instance of Pangasinan of Alcala Pangasinan, which started from 2:00 o'clock in the
and FIDEL H. SAYNES, respondents. afternoon and lasted up to about midnight of the same day.
During the storm, the banana plants standing on an elevated
ESGUERRA, J.:
ground along the barrio road in San Pedro Ili of said
municipality and near the transmission line of the Alcala
Petition for certiorari to review the decision of the Court of
Electric Plant were blown down and fell on the electric wire. As
First Instance of Pangasinan Branch IX, in Civil Case No.
a result, the live electric wire was cut, one end of which was
U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus
left hanging on the electric post and the other fell to the ground
Teodoro C. Umali, defendant-appellant", which found the death
under the fallen banana plants. On the following morning, at
by electrocution of Manuel Saynes, a boy of 3 years and 8
about 9:00 o'clock barrio captain Luciano Bueno of San Pedro
months, as "due to the fault or negligence of the defendant
Iii who was passing by saw the broken electric wire and so he
(Umali) as owner and manager of the Alcala Electric Plant",
warned the people in the place not to go near the wire for they
although the liability of defendant is mitigated by the
might get hurt. He also saw Cipriano Baldomero, a laborer of
contributory negligence of the parents of the boy "in not
the Alcala Electric Plant near the place and notified him right
providing for the proper and delegate supervision and control
then and there of the broken line and asked him to fix it, but the
over their son The dispositive part of the decision reads as
follows:
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.
On defendants' argument that the proximate cause of the
victim's death could be attributed to the parents' negligence in
allowing a child of tender age to go out of the house alone, We
could readily see that because of the aforementioned series of
negligence on the part of defendants' employees resulting in a
live wire lying on the premises without any visible warning of
its lethal character, anybody, even a responsible grown up or
not necessarily an innocent child, could have met the same fate
that befell the victim. It may be true, as the lower Court found
out, that the contributory negligence of the victim's parents in
not properly taking care of the child, which enabled him to
leave the house alone on the morning of the incident and go to a
nearby place cut wire was very near the house (where victim
was living) where the fatal fallen wire electrocuted him, might
mitigate respondent's liability, but we cannot agree with
petitioner's theory that the parents' negligence constituted the
proximate cause of the victim's death because the real
proximate cause was the fallen live wire which posed a threat to
life and property on that morning due to the series of
negligence adverted to above committed by defendants'
employees and which could have killed any other person who
might by accident get into contact with it. Stated otherwise,
even if the child was allowed to leave the house unattended due
to the parents' negligence, he would not have died that morning
where it not for the cut live wire he accidentally touched.
Art. 2179 of the Civil Code provides that if the negligence of
the plaintiff (parents of the victim in this case) was only
contributory, the immediate and proximate cause of the injury
being the defendants' lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded. This law may be availed of by the petitioner but does
not exempt him from liability. Petitioner's liability for injury
caused by his employees negligence is well defined in par. 4, of
Article 2180 of the Civil Code, which states:
The owner and manager of an establishment or enterprise are
likewise responsible for damages caused by their employees in
the service of the branches in which the latter are employed or
on tile occasion of their functions.
The negligence of the employee is presumed to be the
negligence of the employer because the employer is supposed
to exercise supervision over the work of the employees. This
liability of the employer is primary and direct (Standard
Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil. 109).
In fact the proper defense for the employer to raise so that he
may escape liability is to prove that he exercised, the diligence
of the good father of the family to prevent damage not only in
the selection of his employees but also in adequately
supervising them over their work. This defense was not
adequately proven as found by the trial Court, and We do not
find any sufficient reason to deviate from its finding.
Notwithstanding diligent efforts, we fail to fired any reversible
error committed by the trial Court in this case, either in its
appreciation of the evidence on questions of facts or on the
interpretation and application of laws government quasi-delicts
and liabilities emanating therefrom. The inevitable conclusion
is that no error amounting to grave abuse of discretion was
committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June
27, 1974 is affirmed. Costs against petitioner.
SO ORDERED.
 Republic of the Philippines
 had taken the bridge he gave two more successive blasts, as it
SUPREME COURT
 appeared to him that the man on horseback before him was not
Manila observing the rule of the road.

EN BANC The plaintiff, it appears, saw the automobile coming and heard
the warning signals. However, being perturbed by the novelty
G.R. No. L-12219            March 15, 1918 of the apparition or the rapidity of the approach, he pulled the
pony closely up against the railing on the right side of the
AMADO PICART, plaintiff-appellant, 
 bridge instead of going to the left. He says that the reason he
vs.
 did this was that he thought he did not have sufficient time to
FRANK SMITH, JR., defendant-appellee. 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
STREET, J.: automobile approached, the defendant guided it toward his left,
that being the proper side of the road for the machine. In so
In this action the plaintiff, Amado Picart, seeks to recover of the
doing the defendant assumed that the horseman would move to
defendant, Frank Smith, jr., the sum of P31,000, as damages
the other side. The pony had not as yet exhibited fright, and the
alleged to have been caused by an automobile driven by the
rider had made no sign for the automobile to stop. Seeing that
defendant. From a judgment of the Court of First Instance of
the pony was apparently quiet, the defendant, instead of veering
the Province of La Union absolving the defendant from liability
to the right while yet some distance away or slowing down,
the plaintiff has appealed.
continued to approach directly toward the horse without
diminution of speed. When he had gotten quite near, there
The occurrence which gave rise to the institution of this action
being then no possibility of the horse getting across to the other
took place on December 12, 1912, on the Carlatan Bridge, at
side, the defendant quickly turned his car sufficiently to the
San Fernando, La Union. It appears that upon the occasion in
right to escape hitting the horse alongside of the railing where it
question the plaintiff was riding on his pony over said bridge.
as then standing; but in so doing the automobile passed in such
Before he had gotten half way across, the defendant approached
close proximity to the animal that it became frightened and
from the opposite direction in an automobile, going at the rate
turned its body across the bridge with its head toward the
of about ten or twelve miles per hour. As the defendant neared
railing. In so doing, it as struck on the hock of the left hind leg
the bridge he saw a horseman on it and blew his horn to give
by the flange of the car and the limb was broken. The horse fell
warning of his approach. He continued his course and after he
and its rider was thrown off with some violence. From the
evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the
automobile and the railing of the bridge was probably less than
one and one half meters. As a result of its injuries the horse
died. The plaintiff received contusions which caused temporary
unconsciousness and required medical attention for several
days.
The question presented for decision is whether or not the
defendant in maneuvering his car in the manner above
described was guilty of negligence such as gives rise to a civil
obligation to repair the damage done; and we are of the opinion
that he is so liable. As the defendant started across the bridge,
he had the right to assume that the horse and the rider would
pass over to the proper side; but as he moved toward the center
of the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was
too late for the horse to cross with safety in front of the moving
vehicle. In the nature of things this change of situation occurred
while the automobile was yet some distance away; and from
this moment it was not longer within the power of the plaintiff
to escape being run down by going to a place of greater safety.
The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an
immediate stop or, seeing that there were no other persons on
the bridge, to take the other side and pass sufficiently far away
from the horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost upon the
horse. He was, we think, deceived into doing this by the fact
that the horse had not yet exhibited fright. But in view of the
known nature of horses, there was an appreciable risk that, if
the animal in question was unacquainted with automobiles, he
might get exited and jump under the conditions which here
confronted him. When the defendant exposed the horse and
rider to this danger he was, in our opinion, negligent in the eye
of the law.
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that person would have used
in the same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be
supplied by the imaginary conduct of the discreet paterfamilias
of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the
actor in the situation before him. The law considers what would
be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
determined in the light of human experience and in view of the
facts involved in the particular case. Abstract speculations
cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They
are not, and are not supposed to be, omniscient of the future.
Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued? If so, it was the duty of
the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a
given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have
foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against
its consequences.
Applying this test to the conduct of the defendant in the present
case we think that negligence is clearly established. A prudent
man, placed in the position of the defendant, would in our
opinion, have recognized that the course which he was pursuing
was fraught with risk, and would therefore have foreseen harm
to the horse and the rider as reasonable consequence of that
course. Under these circumstances the law imposed on the
defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free
from fault, for he was guilty of antecedent negligence in
planting himself on the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such
case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence
of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last fair
chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the
prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. Rep., 359) should perhaps be mentioned in this
connection. This Court there held that while contributory
negligence on the part of the person injured did not constitute a
bar to recovery, it could be received in evidence to reduce the
damages which would otherwise have been assessed wholly
against the other party. The defendant company had there
employed the plaintiff, as a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the company's yards
located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At certain spot near the
water's edge the track gave way by reason of the combined
effect of the weight of the car and the insecurity of the road
bed. The car was in consequence upset; the rails slid off; and
the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of the typhoon
which had dislodged one of the supports of the track. The court
found that the defendant company was negligent in having
failed to repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of contributory
negligence in walking at the side of the car instead of being in criminal prosecution for the offense mentioned would be res
front or behind. It was held that while the defendant was liable adjudicata upon the question of his civil liability arising from
to the plaintiff by reason of its negligence in having failed to negligence -- a point upon which it is unnecessary to express an
keep the track in proper repair nevertheless the amount of the opinion -- the action of the justice of the peace in dismissing
damages should be reduced on account of the contributory the criminal proceeding upon the preliminary hearing can have
negligence in the plaintiff. As will be seen the defendant's no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep.,
negligence in that case consisted in an omission only. The 564.)
liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now From what has been said it results that the judgment of the
before us, where the defendant was actually present and lower court must be reversed, and judgment is her rendered that
operating the automobile which caused the damage, we do not the plaintiff recover of the defendant the sum of two hundred
feel constrained to attempt to weigh the negligence of the pesos (P200), with costs of other instances. The sum here
respective parties in order to apportion the damage according to awarded is estimated to include the value of the horse, medical
the degree of their relative fault. It is enough to say that the expenses of the plaintiff, the loss or damage occasioned to
negligence of the defendant was in this case the immediate and articles of his apparel, and lawful interest on the whole to the
determining cause of the accident and that the antecedent date of this recovery. The other damages claimed by the
negligence of the plaintiff was a more remote factor in the case. plaintiff are remote or otherwise of such character as not to be
recoverable. So ordered.
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
 Republic of the Philippines
 sum of P250, to Dr. Marfori of the Calauan Hospital, Province
SUPREME COURT
 of Laguna, and the balance to the plaintiff Aleko E. Lilius.
Manila
In support of its appeal, the appellant the Manila Railroad
EN BANC Company assigns nine alleged errors committed by the trial
court in its said judgment, which will be discussed in the course
G.R. No. L-39587             March 24, 1934 of this decision.

ALEKO E. LILIUS, ET AL., plaintiffs-appellants, 
 As a ground of their appeal, the appellants Aleko E. Lilius et
vs.
 al., in turn, assign two alleged errors as committed by the same
THE MANILA RAILROAD COMPANY, defendant- court a quo in its judgment in question, which will be discussed
appellant. later.

VILLA-REAL, J.: This case originated from a complaint filed by Aleko E. Lilius

This case involves two appeals, one by the defendant the
Manila Railroad Company, and the other by the plaintiffs Aleko
E. Lilius et al., from the judgment rendered by the Court of
First Instance of Manila, the dispositive part of which reads as
follows:
et al., praying, under the facts therein alleged, that the Manila
Railroad Company be ordered to pay to said plaintiffs, by way
of indemnity for material and moral damages suffered by them
through the fault and negligence of the said defendant entity's
employees, the sum of P50,000 plus legal interest thereon from
the date of the filing of the complaint, with costs.

Wherefore, judgment is rendered ordering the defendant
company to pay to the plaintiffs, for the purposes above stated,
the total amount of P30,865, with the costs of the suit. And
although the suit brought by the plaintiffs has the nature of a
joint action, it must be understood that of the amount
adjudicated to the said plaintiffs in this judgment, the sum of
P10,000 personally belongs to the plaintiff Sonja Maria Lilius;
the sum of P5,000, to the plaintiff Brita Marianne Lilius; the
The defendant the Manila Railroad Company, answering the
complaint, denies each and every allegation thereof and, by
way of special defense, alleges that the plaintiff Aleko E. Lilius,
with the cooperation of his wife and coplaintiff, negligently and
recklessly drove his car, and prays that it be absolved from the
complaint.
The following facts have been proven at the trial, some without
question and the others by a preponderance of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a well-
known and reputed journalist, author and photographer. At the
time of the collision in question, he was a staff correspondent in
the Far East of the magazines The American Weekly of New
York and The Sphere of London.
Some of his works have been translated into various languages.
He had others in preparation when the accident occurred.
According to him, his writings netted him a monthly income of
P1,500. He utilized the linguistic ability of his wife Sonja
Maria Lilius, who translated his articles and books into English,
German, and Swedish. Furthermore, she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931, the
plaintiff, his wife Sonja Maria Lilius, and his 4-year old
daughter Brita Marianne Lilius, left Manila in
their Studebaker car — driven by the said plaintiff Aleko E.
Lilius — for the municipality of Pagsanjan, Province of
Laguna, on a sight-seeing trip. It was the first time that he made
said trip although he had already been to many places, driving
his own car, in and outside the Philippines. Where the road was
clear and unobstructed, the plaintiff drove at the rate of from 19
to 25 miles an hour. Prior thereto, he had made the trip as far as
Calauan, but never from Calauan to Pagsanjan, via Dayap. He
was entirely unacquainted with the conditions of the road at
said points and had no knowledge of the existence of a railroad
crossing at Dayap. Before reaching the crossing in question,
there was nothing to indicate its existence and inasmuch as
there were many houses, shrubs and trees along the road, it was
impossible to see an approaching train. At about seven or eight
meters from the crossing, coming from Calauan, the plaintiff
saw an autotruck parked on the left side of the road. Several
people, who seemed to have alighted from the said truck, were
walking on the opposite side. He slowed down to about 12
miles an hour and sounded his horn for the people to get out of
the way. With his attention thus occupied, he did not see the
crossing but he heard two short whistles. Immediately
afterwards, he saw a huge black mass fling itself upon him,
which turned out to be locomotive No. 713 of the defendant
company's train coming eastward from Bay to Dayap station.
The locomotive struck the plaintiff's car right in the center.
After dragging the said car a distance of about ten meters, the
locomotive threw it upon a siding. The force of the impact was
so great that the plaintiff's wife and daughter were thrown from
the car and were picked up from the ground unconscious and
seriously hurt. In spite of the efforts of engineer Andres Basilio,
he was unable to stop the locomotive until after it had gone
about seventy meters from the crossing.
On the afternoon of the same day, the plaintiff's entered St.
Paul's Hospital in the City of Manila where they were treated
by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a
fractured nose, a contusion above the left eye and a lacerated
wound on the right leg, in addition to multiple contusions and
scratches on various parts of the body. As a result of the
accident, the said plaintiff was highly nervous and very easily
irritated, and for several months he had great difficulty in
concentrating his attention on any matter and could not write
articles nor short stories for the newspapers and magazines to
which he was a contributor, thus losing for some time his only
means of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the
pelvic bone, the tibia and fibula of the right leg, below the knee,
and received a large lacerated wound on the forehead. She
underwent two surgical operations on the left leg for the
purpose of joining the fractured bones but said operations
notwithstanding, the leg in question still continues deformed. In
the opinion of Dr. Waterous, the deformity is permanent in
character and as a result the plaintiff will have some difficulty
in walking. The lacerated wound, which she received on her
forehead, has left a disfiguring scar.
The child Brita Marianne Lilius received two lacerated wounds,
one on the forehead and the other on the left side of the face, in
addition to fractures of both legs, above and below the knees.
Her condition was serious and, for several days, she was
hovering between life and death. Due to a timely and successful
surgical operation, she survived her wounds. The lacerations
received by the child have left deep scars which will
permanently disfigure her face, and because of the fractures of
both legs, although now completely cured, she will be forced to
walk with some difficulty and continuous extreme care in order
to keep her balance.
Prior to the accident, there had been no notice nor sign of the
existence of the crossing, nor was there anybody to warn the
public of approaching trains. The flagman or switchman arrived
after the collision, coming from the station with a red flag in
one hand and a green one in the other, both of which were
wound on their respective sticks. The said flagman and
switchman had many times absented himself from his post at
the crossing upon the arrival of a train. The train left Bay
station a little late and therefore traveled at great speed.
Upon examination of the oral as well as of the documentary
evidence which the parties presented at the trial in support of
their respective contentions, and after taking into consideration
all the circumstances of the case, this court is of the opinion
that the accident was due to negligence on the part of the
defendant-appellant company, for not having had on that
occasion any semaphore at the crossing at Dayap, to serve as a
warning to passers-by of its existence in order that they might
take the necessary precautions before crossing the railroad; and,
on the part of its employees — the flagman and switchman, for
not having remained at his post at the crossing in question to
warn passers-by of the approaching train; the stationmaster, for
failure to send the said flagman and switchman to his post on
time; and the engineer, for not having taken the necessary
precautions to avoid an accident, in view of the absence of said
flagman and switchman, by slackening his speed and
continuously ringing the bell and blowing the whistle before
arriving at the crossing. Although it is probable that the
defendant-appellant entity employed the diligence of a good
father of a family in selecting its aforesaid employees, however,
it did not employ such diligence in supervising their work and
the discharge of their duties because, otherwise, it would have
had a semaphore or sign at the crossing and, on previous
occasions as well as on the night in question, the flagman and
switchman would have always been at his post at the crossing
upon the arrival of a train. The diligence of a good father of a
family, which the law requires in order to avoid damage, is not
confined to the careful and prudent selection of subordinates or
employees but includes inspection of their work and
supervision of the discharge of their duties.
However, in order that a victim of an accident may recover
indemnity for damages from the person liable therefor, it is not
enough that the latter has been guilty of negligence, but it is
also necessary that the said victim has not, through his own
negligence, contributed to the accident, inasmuch as nobody is
a guarantor of his neighbor's personal safety and property, but
everybody should look after them, employing the care and
diligence that a good father of a family should apply to his own
person, to the members of his family and to his property, in
order to avoid any damage. It appears that the herein plaintiff-
appellant Aleko E. Lilius took all precautions which his skill
and the presence of his wife and child suggested to him in order
that his pleasure trip might be enjoyable and have a happy
ending, driving his car at a speed which prudence demanded
according to the circumstances and conditions of the road,
slackening his speed in the face of an obstacle and blowing his
horn upon seeing persons on the road, in order to warn them of
his approach and request them to get out of the way, as he did
when he came upon the truck parked on the left hand side of the
road seven or eight meters from the place where the accident
occurred, and upon the persons who appeared to have alighted
from the said truck. If he failed to stop, look and listen before
going over the crossing, in spite of the fact that he was driving
at 12 miles per hour after having been free from obstacles, it
was because, his attention having been occupied in attempting
to go ahead, he did not see the crossing in question, nor
anything, nor anybody indicating its existence, as he knew
nothing about it beforehand. The first and only warning, which
he received of the impending danger, was two short blows from
the whistle of the locomotive immediately preceding the
collision and when the accident had already become inevitable.
In view of the foregoing considerations, this court is of the
opinion that the defendant the Manila Railroad Company alone
is liable for the accident by reason of its own negligence and
that of its employees, for not having employed the diligence of
a good father of a family in the supervision of the said
employees in the discharge of their duties.
The next question to be decided refers to the sums of money
fixed by the court a quo as indemnities for damages which the
defendant company should pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although
this court believes his claim of a net income of P1,500 a month
to be somewhat exaggerated, however, the sum of P5,000,
adjudicated to him by the trial court as indemnity for damages,
is reasonable.
As to the sum of P10,635 which the court awards to the
plaintiffs by way of indemnity for damages, the different items
thereof representing doctor's fees, hospital and nursing services,
loss of personal effects and torn clothing, have duly been
proven at the trial and the sum in question is not excessive,
taking into consideration the circumstances in which the said
expenses have been incurred.
Taking into consideration the fact that the plaintiff Sonja Maria
Lilius, wife of the plaintiff Aleko E. Lilius is — in the language
of the court, which saw her at the trial — "young and beautiful
and the big scar, which she has on her forehead caused by the
lacerated wound received by her from the accident, disfigures
her face and that the fracture of her left leg has caused a
permanent deformity which renders it very difficult for her to
walk", and taking into further consideration her social standing,
neither is the sum of P10,000, adjudicated to her by the said
trial court by way of indemnity for patrimonial and moral
damages, excessive. In the case of Gutierrez vs. Gutierrez (56
Phil., 177), the right leg of the plaintiff Narciso Gutierrez was
fractured as a result of a collision between the autobus in which
he was riding and the defendant's car, which fractured required
medical attendance for a considerable period of time. On the
day of the trial the fracture had not yet completely healed but it
might cause him permanent lameness. The trial court sentenced
the defendants to indemnify him in the sum of P10,000 which
this court reduced to P5,000, in spite of the fact that the said
plaintiff therein was neither young nor good-looking, nor had
he suffered any facial deformity, nor did he have the social
standing that the herein plaintiff-appellant Sonja Maria Lilius
enjoys.1ªvvphi1.ne+
As to the indemnity of P5,000 in favor of the child Brita
Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria
Lilius, neither is the same excessive, taking into consideration
the fact that the lacerations received by her have left deep scars
that permanently disfigure her face and that the fractures of
both her legs permanently render it difficult for her to walk
freely, continuous extreme care being necessary in order to
keep her balance in addition to the fact that all of this
unfavorably and to a great extent affect her matrimonial future.
With respect to the plaintiffs' appeal, the first question to be
decided is that raised by the plaintiff Aleko E. Lilius relative to
the insufficiency of the sum of P5,000 which the trial court
adjudicated to him by way of indemnity for damages consisting
in the loss of his income as journalist and author as a result of
his illness. This question has impliedly been decided in the
negative when the defendant-appellant entity's petition for the
reduction of said indemnity was denied, declaring it to be
reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E.
Lilius as damages for the loss of his wife's services in his
business as journalist and author, which services consisted in
going over his writings, translating them into English, German
and Swedish, and acting as his secretary, in addition to the fact
that such services formed part of the work whereby he realized
a net monthly income of P1,500, there is no sufficient evidence
of the true value of said services nor to the effect that he needed
them during her illness and had to employ a translator to act in
her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of
P2,500 for the loss of what is called Anglo-Saxon common law
"consortium" of his wife, that is, "her services, society and
conjugal companionship", as a result of personal injuries which
she had received from the accident now under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255,
256), this court, interpreting the provisions of the Civil
Marriage Law of 1870, in force in these Islands with reference
to the mutual rights and obligations of the spouses, contained in
articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil Marriage and
the Civil Code fix the duties and obligations of the spouses. The
spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must
obey and live with her husband and follow him when he
changes his domicile or residence, except when he removes to a
foreign country. . . .
Therefore, under the law and the doctrine of this court, one of
the husband's rights is to count on his wife's assistance. This
assistance comprises the management of the home and the
performance of household duties, including the care and
education of the children and attention to the husband upon
whom primarily devolves the duty of supporting the family of
which he is the head. When the wife's mission was
circumscribed to the home, it was not difficult to assume, by
virtue of the marriage alone, that she performed all the said
tasks and her physical incapacity always redounded to the
husband's prejudice inasmuch as it deprived him of her
assistance. However, nowadays when women, in their desire to
be more useful to society and to the nation, are demanding
greater civil rights and are aspiring to become man's equal in all
the activities of life, commercial and industrial, professional
and political, many of them spending their time outside the
home, engaged in their businesses, industry, profession and
within a short time, in politics, and entrusting the care of their
home to a housekeeper, and their children, if not to a
nursemaid, to public or private institutions which take charge of
young children while their mothers are at work, marriage has
ceased to create the presumption that a woman complies with
the duties to her husband and children, which the law imposes
upon her, and he who seeks to collect indemnity for damages
resulting from deprivation of her domestic services must prove
such services. In the case under consideration, apart from the
services of his wife Sonja Maria Lilius as translator and
secretary, the value of which has not been proven, the plaintiff
Aleko E. Lilius has not presented any evidence showing the
existence of domestic services and their nature, rendered by her
prior to the accident, in order that it may serve as a basis in
estimating their value.
Furthermore, inasmuch as a wife's domestic assistance and The plaintiffs-appellants are entitled to interest of 6 percent per
conjugal companionship are purely personal and voluntary acts annum on the amount of the indemnities adjudicated to them,
which neither of the spouses may be compelled to render from the date of the appealed judgment until this judgment
(Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for becomes final, in accordance with the provisions of section 510
the party claiming indemnity for the loss of such services to of Act No. 190.
prove that the person obliged to render them had done so before
he was injured and that he would be willing to continue Wherefore, not finding any error in the judgment appealed
rendering them had he not been prevented from so doing. from, it is hereby affirmed in toto, with the sole modification
that interest of 6 per cent per annum from the date of the
In view of the foregoing considerations this court is of the appealed judgment until this judgment becomes final will be
opinion and so holds: (1) That a railroad company which has added to the indemnities granted, with the costs of both
not installed a semaphore at a crossing an does not see to it that instances against the appellant. So ordered.
its flagman and switchman faithfully complies with his duty of
remaining at the crossing when a train arrives, is guilty of
negligence and is civilly liable for damages suffered by a
motorist and his family who cross its line without negligence
on their part; (2) that an indemnity of P10,000 for a permanent
deformity on the face and on the left leg, suffered by a young
and beautiful society woman, is not excessive; (3) that an
indemnity of P5,000 for a permanent deformity on the face and
legs of a four-year old girl belonging to a well-to-do family, is
not excessive; and (4) that in order that a husband may recover
damages for deprivation of his wife's assistance during her
illness from an accident, it is necessary for him to prove the
existence of such assistance and his wife's willingness to
continue rendering it had she not been prevented from so doing
by her illness.
 Republic of the Philippines
 the victim of a grim tragedy, when the jeep he was driving
SUPREME COURT
 collided with a locomotive of defendant-appellee Manila
Manila Railroad Company, close to midnight on the evening of Feb 21,
1957, at the railroad crossing in Balibago, Angeles, Pampanga,
EN BANC in front of the Clark Air Force Base. In the decision appealed
from, the lower court, after summarizing the evidence,
G.R. No. L-21291               March 28, 1969 concluded that the deceased "in his eagerness to beat, so to
speak, the oncoming locomotive, took the risk and attempted to
PRECIOLITA V. CORLISS, plaintiff-appellant, 
 reach the other side, but unfortunately he became the victim of
vs.
 his own miscalculation." 1
THE MANILA RAILROAD CO., defendant-appellant.
  The negligence imputed to defendant-appellee was thus ruled
FERNANDO, J.: out by the lower court, satisfactory proof to that effect, in its
opinion, being lacking. Hence this appeal direct to us, the
  Youth, the threshold of life, is invariably accompanied by that
amount sought in the concept of damages reaching the sum of
euphoric sense of well-being, and with reason. The future,
P282,065.40. An examination of the evidence of record fails to
bright with promise, looms ahead. One's powers are still to be
yield a basis for a reversal of the decision appealed from. We
tested, but one feels ready for whatever challenge may come his
affirm.
way. There is that heady atmosphere of self-confidence, at
times carried to excess. The temptation to take risks is there,   According to the decision appealed from, there is no dispute as
ever so often, difficult, if not impossible, to resist. There could to the following: "In December 1956, plaintiff, 19 years of age,
be then a lessening of prudence and foresight, qualities usually married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr.
associated with age. For death seems so remote and contingent was an air police of the Clark Air Force Base; that at the time of
an event. Such is not always the case though, and a slip may be the accident, he was driving the fatal jeep; that he was then
attended with consequences at times unfortunate, even fatal. 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
  Some such thought apparently was in the mind of the lower
the next day, while the soldier sustained serious physical
court when it dismissed the complaint for recovery of damages
injuries and burns." 2
filed by plaintiff-appellant, Preciolita V. Corliss whose husband,
the late Ralph W. Corliss, was, at the tender age of twenty-one,
  Then came a summary of the testimony of two of the
witnesses for plaintiff-appellant. Thus: "Ronald J. Ennis, a
witness of the plaintiff, substantially declared in his
deposition, ..., that at the time of the accident, he also awaiting
transportation at the entrance of Clark Field, which was about
40 to 50 yards away from the tracks and that while there he saw
the jeep coming towards the Base. He said that said jeep slowed
down before reaching the crossing, that it made a brief stop but
that it did not stop — dead stop. Elaborating, he declared that
while it was slowing down, Corliss Jr. shifted into first gear and
that was what he meant by a brief stop. He also testified that he
could see the train coming from the direction of San Fernando
and that he heard a warning but that it was not sufficient
enough to avoid the accident."   3   Also: "Virgilio de la Paz,
another witness of the plaintiff, testified that on the night of
February 21, 1957, he was at the Balibago checkpoint and saw
the train coming from Angeles and a jeep going towards the
direction of Clark Field. He stated that he heard the whistle of
the locomotive and saw the collision. The jeep, which caught
fire, was pushed forward. He helped the P.C. soldier. He stated
that he saw the jeep running fast and heard the tooting of the
horn. It did not stop at the railroad crossing, according to
him." 4
  After which reference was made to the testimony of the main
witness for defendant-appellee, Teodorico Capili, "who was at
the engine at the time of the mishap," and who "testified that
before the locomotive, which had been previously inspected
and found to be in good condition approached, the crossing,
that is, about 300 meters away, he blew the siren and repeated it
in compliance with the regulations until he saw the jeep
suddenly spurt and that although the locomotive was running
between 20 and 25 kilometers an hour and although he had
applied the brakes, the jeep was caught in the middle of the
tracks." 5
  1. The above finding as to the non-existence of negligence
attributable to defendant-appellee Manila Railroad Company
comes to us encased in the armor of what admittedly appears to
be a careful judicial appraisal and scrutiny of the evidence of
record. It is thus proof against any attack unless sustained and
overwhelming. Not that it is invulnerable, but it is likely to
stand firm in the face of even the most formidable barrage.
  In the more traditional terminology, the lower court judgment
has in its favor the presumption of correctness. It is entitled to
great respect. After all, the lower court had the opportunity of
weighing carefully what was testified to and apparently did not
neglect it. There is no affront to justice then if its finding be
accorded acceptance subject of course the contingency of
reversal if error or errors, substantial in character, be shown in
the conclusion thus arrived at. It is a fair statement of the
governing, principle to say that the appellate function is
exhausted when there is found to be a rational basis for the
result reached by the trial court.
  As was held in a 1961 decision: "We have already ruled, that
when the credibility of witnesses is the one at issue, the trial
court's judgment as to their degree of credence deserves serious
consideration by this Court." 6 An earlier expression of the same
view is found in   Jai-Alai Corporation v. Ching Kiat: "After
going over the record, we find no reason for rejecting the
findings of the court below. The questions raised hinge on
credibility and it is well-settled that in the absence of
compelling reasons, its determination is best left to the trial
judge why had the advantage of hearing the parties testify and
observing their demeanor on the witness stand." 7
  In a 1964 opinion, we adhered to such an approach. Thus:
"'Nothing in the record suggests any arbitrary or abusive
conduct on the part of the trial judge in the formulation of the
ruling. His conclusion on the matter is sufficiently borne out by
the evidence presented. We are denied, therefore, the
prerogative to disturb that finding, consonant to the time
honored tradition of the Tribunal to hold trial judges better
situated to make conclusions on questions of fact'."  8  On this
ground alone we can rest the affirmance of the judgment
appealed from.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.
  The above Civil Code provision, which is a reiteration of that
found in the Civil Code of Spain, formerly applicable in this
jurisdiction, 10 had been interpreted in earlier decisions. Thus, in
Smith v. Cadwallader Gibson Lumber Co., 11Manresa was cited
to the following effect "'Among the questions most frequently
raised and upon which the majority of cases have been decided
with respect to the application of this liability, are those
referring to the determination of the damage or prejudice, and
to the fault or negligence of the person responsible therefor.
These are the two indispensable factors in the obligations under
discussion, for without damage or prejudice there can be no
liability, and although this element is present no indemnity can
be awarded unless arising from some person's fault or
negligence'."
  Negligence was defined by us in two 1912 decisions, United
States v. Juanillo   12   and United States v. Barias.   13Cooley'
formulation was quoted with approval in both the Juanillo and
Barias decisions. Thus: "Judge Cooley in his work on Torts (3d
ed.), Sec. 1324, defines negligence to be: "The failure to
observe for the protection of the interests of another person that
degree of care, precaution and vigilance which the
circumstance justly demand whereby such other person suffers
injury." There was likewise a reliance on Ahern v. Oregon
Telephone Co. 14 Thus: "Negligence is want of the care required
by the circumstances. It is a relative or comparative, not an
absolute term and its application depends upon the situation of
the parties and the degree of care and vigilance which the
circumstances reasonably require. Where the danger is great, a
high degree of care is necessary, and the failure to observe it is
a want of ordinary care under the circumstances."
  To repeat, by such a test, no negligence could be imputed to
defendant-appellee, and the action of plaintiff-appellee must
necessary fail. The facts being what they are, compel the
conclusion that the liability sought to be fastened on defendant-
appellee had not arisen.
  3. Plaintiff-appellant, in her brief, however, would seek a
reversal of the judgment appealed from on the ground that there
was a failure to appreciate the true situation. Thus the first three
assigned errors are factual in character. The third assigned error
could be summarily disposed of. It would go against the
evidence to maintain the view that the whistle was not sounded
and the brakes not applied at a distance of 300 meters before
reaching the crossing.
  The first two assigned errors would make much of the failure
of the lower court to hold that the crossing bars not having been
put down and there being no guard at the gate-house, there still
was a duty on the part of Corliss to stop his jeep to avoid a
collision and that Teodorico Capili, who drove the engine, was
not qualified to do so at the time of the accident. For one cannot
just single out circumstance and then confidently assign to it
decisive weight and significance. Considered separately, neither
of the two above errors assigned would call for a judgment
different in character. Nor would a combination of acts
allegedly impressed with negligence suffice to alter the result.
The quantum of proof required still not been met. The alleged
errors fail of their said effect. The case for 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.
  In this particular case, it would be to show less than fidelity to
the controlling facts to impute negligence to defendant-
appellee. The first three errors assigned certainly do not call for
that conclusion.
  4. The fourth assigned error is deserving of a more extended
treatment. Plaintiff-appellant apparently had in mind this
portion of the opinion of the lower court: "The weight of
authorities is to the effect that a railroad track is in itself a
warning or a signal of danger to those who go upon it, and that
those who, for reasons of their own, ignore such warning, do so
at their own risk and responsibility. Corliss Jr., who
undoubtedly had crossed the checkpoint frequently, if not daily,
must have known that locomotive engines and trains usually
pass at that particular crossing where the accident had taken
place." 15
  Her assignment of error, however, would single out not the
above excerpt from the decision appealed from but what to her
is the apparent reliance of the lower court on Mestres v. Manila
Electric Railroad & Light Co. 16 and United States v. Manlabat
& Pasibi. 17 In the Manabat case, the doctrine announced by this
Court follows: "A person in control of an automobile who
crosses a railroad, even at a regular road crossing, and who
does not exercise that precaution and that control over it as to
be able to stop the same almost immediately upon the
appearance of a train, is guilty of criminal negligence,
providing a collision occurs and injury results. Considering the
purposes and the general methods adopted for the management
of railroads and railroad trains, we think it is incumbent upon
one approaching a railroad crossing to use all of his faculties of
seeing and hearing. He should approach a railroad crossing
cautiously and carefully. He should look and listen and do
everything that a reasonably prudent man would do before he
attempts to cross the track." The Mestres doctrine in a suit
arising from a collision between an automobile and a street car
is substantially similar. Thus: "It may be said, however, that,
where a person is nearing a street crossing toward which a car
is approaching, the duty is on the party to stop and avoid a
collision who can most readily adjust himself to the exigencies
of the case, and where such person can do so more readily, the
motorman has a right to presume that such duty will be
performed."
  It is true, as plaintiff-appellant would now allege that there has
been a drift away from the apparent rigid and inflexible
doctrine thus set forth in the two above cases evidenced
by   Lilius v. Manila Railroad Co.,   18   the controlling facts of
which, however, are easily distinguishable from what had been
correctly ascertained in the present case. Such a deviation from
the earlier principle announced is not only true of this
jurisdiction but also of the United States.
  This is made clear by Prosser. Speaking of a 1927 decision by
Justice Holmes, he had the following to say: "Especially
noteworthy in this respect is the attempt Mr. Justice Holmes, in
Baltimore & Ohio Railway v. Goodman, to 'lay down a
standard once for all,' which would require an automobile
driver approaching a railroad crossing with an obstructed view
to stop, look and listen, and if he cannot be sure otherwise that
no train is coming to get out of the car. The basic idea behind
this is sound enough: it is by no means proper care to cross a
railroad track without taking reasonable precautions against a
train, and normally such precautions will require looking,
hearing, and a stop, or at least slow speed, where the view is
obstructed." 19
  Then, barely seven years later, in 1934, came   Pakora v.
Wabash Railway, 20 where, according to Prosser, it being shown
that "the only effective stop must be made upon the railway
tracks themselves, in a position of obligation danger, the court
disregarded any such uniform rule, rejecting the 'get out of the
car' requirement as 'an uncommon precaution, likely to be futile
and sometimes even dangerous,' and saying that the driver need
not always stop. 'Illustrations such as these,' said Mr. Justice
Cardozo 'bear witness to the need for caution in framing
standards of behavior that amount to rules of law....
Extraordinary situations may not wisely or fairly be subjected
to tests or regulations that are fitting for the commonplace or
normal." 21
  What 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.

  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.
 Republic of the Philippines
 owner of the motor schooner Gwendoline, which was used in
SUPREME COURT
 the fishing trade in the Philippine Islands. In January, 1925,
Manila Cranston decided, if practicable, to have the engine on
the Gwendoline changed from a gasoline consumer to a crude
EN BANC oil burner, expecting thereby to effect economy in the cost of
running the boat. He therefore made known his desire to
G.R. No. L-32611             November 3, 1930 McLeod & Co., a firm dealing in tractors, and was told by Mc
Kellar, of said company, that he might make inquiries of the
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff- Philippine Motors Corporations, which had its office on Ongpin
appellee, 
 Street, in the City of Manila. Cranston accordingly repaired to
vs.
 the office of the Philippine Motors Corporation and had a
PHILIPPINE MOTORS CORPORATION, defendant- conference with C.E. Quest, its manager, who agreed to do the
appellant. job, with the understanding that payment should be made upon
completion of the work.
STREET, J.:
The Philippine Motors Corporation was at this time engaged in
This action was instituted in the Court of First Instance of
business as an automobile agency, but, under its charter, it had
Manila by the Culion Ice, Fish & Electric Co., Inc., for the
authority to deal in all sorts of machinery engines and motors,
purpose of recovering from the Philippine Motors Corporation
as well as to build, operate, buy and sell the same and the
the sum of P11,350, with interest and costs. Upon hearing the
equipment therof. Quest, as general manager, had full charge of
cause the trial court gave judgment in favor of the plaintiff to
the corporations in all its branches.
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 As a result of the aforesaid interview, Quest, in company with
filing of the complaint, until satisfaction of the judgment, with Cranston, visited the Gwendoline while it lay at anchor in the
costs. From this judgment the defendant appealed. Pasig River, and the work of effecting the change in the engine
was begun and conducted under the supervision of Quest,
The plaintiff and defendant are domestic corporations; and at
chiefly by a mechanic whom Quest took with him to the boat.
the time of the incident with which we are here concerned,
In this work Quest had the assistance of the members of the
H.D. Cranston was the representative of the plaintiff in the City
of Manila. At the same time the plaintiff was the registered
crew of the Gwendoline, who had been directed by Cranston to
place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the
conclusion that the principal thing necessary to accomplish the
end in view was to install a new carburetor, and a Zenith
carburetor was chosen as the one most adapted to the purpose.
After this appliance had been installed, the engine was tried
with gasoline as a fuel, supplied from the tank already in use.
The result of this experiment was satisfactory. The next
problem was to introduce into the carburetor the baser fuel,
consisting of a low grade of oil mixed with distillate. For this
purpose a temporary tank to contain the mixture was placed on
deck above and at a short distance from the compartment
covering the engine. This tank was connected with the
carburetor by a piece of tubing, which was apparently not well
fitted at the point where it was connected with the tank. Owing
to this fact the fuel mixture leaked from the tank and dripped
sown into the engine compartment. The new fuel line and that
already in use between the gasoline tank and carburetor were so
fixed that it was possible to change from the gasoline fuel to the
mixed fuel. The purpose of this arrangement was to enable the
operator to start the engine on gasoline and then, after the
engine had been operating for a few moments, to switch to the
new fuel supply. lawphil.net
In the course of the preliminary work upon the carburetor and
its connections, it was observed that the carburetor was
flooding, and that the gasoline, or other fuel, was trickling
freely from the lower part to the carburetor to the floor. This
fact was called to Quest's attention, but he appeared to think
lightly of the matter and said that, when the engine had gotten
to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made
the boat was taken out into the bay for a trial run at about 5
p.m. or a little later, on the evening of January 30,1925. The
first part of the course was covered without any untoward
development, other than he fact that the engine stopped a few
times, owing no doubt to the use of an improper mixture of
fuel. In the course of the trial Quest remained outside of the
engine compartment and occupied himself with making
distillate, with a view to ascertaining what proportion of the
two elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and
when passing near Cavite, the engine stopped, and connection
again had to be made with the gasoline line to get a new start.
After this had been done the mechanic, or engineer, switched to
the tube connecting with the new mixture. A moment later a
back fire occurred in the cylinder chamber. This caused a flame
to shoot back into the carburetor, and instantly the carburetor
and adjacent parts were covered with a mass of flames, which
the members of the crew were unable to subdue. They were
therefore compelled, as the fire spread, to take to a boat, and
their escape was safely effected, but the   Gwendoline   was
reduced to a mere hulk. The salvage from, the wreck, when
sold, brought only the sum of P150. The value of the boat,
before the accident occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss
of this boat was chargeable to the negligence and lack of skill
of Quest. The temporary tank in which the mixture was
prepared was apparently at too great an elevation from the
carburetor, with the result that when the fuel line was opened,
the hydrostatic pressure in the carburetor was greater than the
delicate parts of the carburetor could sustain. This was no doubt
the cause of the flooding of the carburetor; and the result was
that; when the back fire occurred, the external parts of the
carburetor, already saturated with gasoline, burst into flames,
whence the fire was quickly communicated to the highly
inflammable material 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 that the action was brought within the period limited by the
on the defendant to exculpate itself from responsibility by statute of limitations and the situation is not one where the
proving that the accident was not due to the fault of Quest. We defense of laches can be properly invoked. It results that the
are unable to accede to this point of view. Certainly, Quest was judgment appealed from, awarding damages to the plaintiff in
not in charge of the navigation of the boat on this trial run. His the amount of P9,850, with interest, must be affirmed; and it is
employment contemplated the installation of new parts in the so ordered, with costs against the appellant.
engine only, and it seems rather strained to hold that the
defendant corporation had thereby become bailee of the boat. Topic: Quasi-Delicts
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 Republic of the Philippines

shop, are not bailees, and their rights and liabilities are SUPREME COURT

determined by the general rules of law, under their contract. Manila
The true bailee acquires possession and what is usually spoken
SECOND DIVISION
of as special property in the chattel bailed. As a consequence of
such possession and special property, the bailee is given a lien
G.R. No. 77679 September 30, 1987
for his compensation. These ideas seem to be incompatible with
the situation now under consideration. But though defendant VICENTE VERGARA, petitioner, 

cannot be held liable in the supposition that the burden of proof vs.

had not been sustained by it in disproving the negligence of its THE COURT OF APPEALS and AMADEO
manager, we are nevertheless of the opinion that the proof AZARCON, respondents.
shows by a clear preponderance that the accident to
the   Gwendolineand the damages resulting therefrom are R E S O L U T I O N 
chargeable to the negligence or lack of skill of Quest.
PADILLA, J.:
This action was instituted about two years after the accident in
question had occured, and after Quest had ceased to be manager An action for damages based on quasi-delict (Art. 2176 of the
of the defendant corporation and had gone back to the United Civil Code) was filed by private respondent against petitioner.
States. Upon these facts, the defendant bases the contention that The action arose from a vehicular accident that occurred on 5
the action should be considered stale. It is sufficient reply to say August 1979 in Gapan, Nueva Ecija, when Martin Belmonte,
while driving a cargo truck belonging to petitioner, rammed
"head-on" the store-residence of the private respondent, causing
damages thereto which were inventoried and assessed at
P53,024.22.
In his answer to the complaint, the petitioner alleged
principally: "that his driver Martin Belmonte operated said
cargo truck in a very diligent (and) careful manner; that the
steering wheel refused to respond to his effort and as a result of
a blown-out tire and despite application of his brakes, the said
cargo truck hit the store-residence of plaintiff (private
respondent) and that the said accident was an act of God for
which he cannot be held liable." 1
Petitioner also filed a third party complaint against Travellers
Insurance and Surety Corporation, alleging that said cargo truck
involved in the vehicular accident, belonging to the petitioner,
was insured by the third party defendant insurance company.
Petitioner asked that the latter be ordered to pay him whatever
amount he may be ordered by the court to pay to the private
respondent.
The trial court rendered judgment in favor of private
respondent. Upon appeal to the Court of Appeals, the latter
court affirmed   in toto   the decision of the trial court, which
ordered Petitioner to pay, jointly and severally with Travellers
Insurance and Surety Corporation, to the private, respondent
the following: (a) P53,024.22 as actual damages; (b)
P10,000.00 as moral damages; (c) P10,000.00 as exemplary
damages; and (d) the sum of P5,000.00 for attorney's fees and
the costs. On the third party complaint, the insurance company
was sentenced to pay to the petitioner the following: (a)
P50,000.00 for third party liability under its comprehensive
accident insurance policy; and (b) P3,000.00 for and as
attorney's fees.
Hence, this petition for review on certiorari.
Petitioner's contention that the respondent court erred in finding
him guilty of fault or negligence is not tenable. It was
established by competent evidence that the requisites of a
quasi-delict are present in the case at bar. These requisites are:
(1) damages to the plaintiff; (2) negligence, by act or omission,
of which defendant, or some person for whose acts he must
respond, was guilty; and (3) the connection of cause and effect
between such negligence and the damages.
It is undisputed that private respondent suffered damages as a
result of an act or omission of petitioner. The issue of whether
or not this act or omission can be considered as a "negligent"
act or omission was passed upon by the trial court. The findings
of said court, affirmed by the respondent court, which we are
not prepared to now disturb, show that the fact of occurrence of
the "vehicular accident" was sufficiently established by the
policy report and the testimony of Patrolman Masiclat. And the
fact of negligence may be deduced from the surrounding
circumstances thereof. According to the police report, "the
cargo truck was travelling on the right side of the road going to
Manila and then it crossed to the center line and went to the left
side of the highway; it then bumped a tricycle; and then another
bicycle; and then said cargo truck rammed the store warehouse
of the plaintiff."2
According to the driver of the cargo truck, he applied the brakes
but the latter did not work due to mechanical defect. Contrary
to the claim of the petitioner, a mishap caused by defective
brakes can not be consideration as fortuitous in character.
Certainly, the defects were curable and the accident
preventable.
Furthermore, the petitioner failed to adduce any evidence to
overcome the disputable presumption of negligence on his part
in the selection and supervision of his driver.
Based on the foregoing finding by the respondent Court that
there was negligence on the part of the petitioner, the
petitioner's contention that the respondent court erred in
awarding private respondent actual, moral and exemplary
damages as well as attorney's fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
FIRST DIVISION 
G.R. No. 118889 March 23, 1998
FGU INSURANCE CORPORATION, petitioner, 

vs.

COURT OF APPEALS, FILCAR TRANSPORT, INC., and
FORTUNE INSURANCE CORPORATION, respondents.
BELLOSILLO, J.:
For damages suffered by a third party, may an action based
on   quasi-delict   prosper against a rent-a-car company and,
consequently, its insurer for fault or negligence of the car lessee
in driving the rented vehicle?
This was a two-car collision at dawn. At around 3 o'clock of 21
April 1987, two (2) vehicles, both Mitsubishi Colt Lancers,
cruising northward along Epifanio de los Santos Avenue,
Mandaluyong City, figured in a traffic accident. The car bearing
Plate No. PDG 435 owned by Lydia F. Soriano was being
driven at the outer lane of the highway by Benjamin Jacildone,
while the other car, with Plate No. PCT 792, owned by
respondent FILCAR Transport, Inc. (FILCAR), and driven by
Peter Dahl-Jensen as lessee, was at the center lane, left of the
other vehicle. Upon approaching the corner of Pioneer Street,
the car owned by FILCAR swerved to the right hitting the left
side of the car of Soriano. At that time Dahl-Jensen, a Danish
tourist, did not possess a Philippine driver's license. 1
As a consequence, petitioner FGU Insurance Corporation, in
view of its insurance contract with Soriano, paid the latter
P25,382.20. By way of subrogation,2  it sued Dahl-Jensen and
respondent FILCAR as well as respondent Fortune Insurance
Corporation (FORTUNE) as insurer of FILCAR for   quasi-
delict before the Regional Trial Court of Makati City.
Unfortunately, summons was not served on Dahl-Jensen since
he was no longer staying at his given address; in fact, upon
motion of petitioner, he was dropped from the complaint.
On 30 July 1991 the trial court dismissed the case for failure of
petitioner to substantiate its claim of subrogation.3
On 31 January 1995 respondent Court of Appeals affirmed the
ruling of the trial court although based on another ground, i.e.,
only the fault or negligence of Dahl-Jensen was sufficiently
proved but not that of respondent FILCAR.4  In other words,
petitioner failed to establish its cause of action for sum of
money based on quasi-delict.
In this appeal, petitioner insists that respondents are liable on
the strength of the ruling in MYC-Agro-Industrial Corporation
v. Vda. de Caldo5 that the registered owner of a vehicle is liable
for damages suffered by third persons although the vehicle is
leased to another.
We find no reversible error committed by respondent court in
upholding the dismissal of petitioner's complaint. The pertinent
provision is Art. 2176 of the Civil Code which states: "Whoever
by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict . . . . "
To sustain a claim based thereon, the following requisites must
concur: (a) damage suffered by the plaintiff; (b) fault or
negligence of the defendant; and, (c) connection of cause and
effect between the fault or negligence of the defendant and the
damage incurred by the plaintiff.6
We agree with respondent court that petitioner failed to prove
the existence of the second requisite, i.e., fault or negligence of
defendant FILCAR, because only the fault or negligence of
Dahl-Jensen was sufficiently established, not that of FILCAR.
It should be noted that the damage caused on the vehicle of
Soriano was brought about by the circumstance that Dahl-
Jensen swerved to the right while the vehicle that he was
driving was at the center lane. It is plain that the negligence was
solely attributable to Dahl-Jensen thus making the damage
suffered by the other vehicle his personal liability. Respondent
FILCAR did not have any participation therein.
Article 2180 of the same Code which deals also with quasi-
delict provides:
The obligation imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons
for whom one is responsible.
The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children
who live in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live in
their company.
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in
the service of the branches in which the latter are employed or
on the occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in
any business or industry.
The State is responsible in like manner when it acts through a
special agent; but not when the damage has been caused by the
official to whom the task done properly pertains, in which case
what is provided in article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages caused by their pupils and students
or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
The liability imposed by Art. 2180 arises by virtue of a
presumption   juris tantum   of negligence on the part of the
persons made responsible thereunder, derived from their failure
to exercise due care and vigilance over the acts of subordinates
to prevent them from causing damage.7   Yet, as correctly
observed by respondent court, Art. 2180 is hardly applicable
because none of the circumstances mentioned therein obtains in
the case under consideration. Respondent FILCAR being
engaged in a rent-a-car business was only the owner of the car
leased to Dahl-Jensen. As such, there was no   vinculum
juris   between them as employer and employee. Respondent
FILCAR cannot in any way be responsible for the negligent act
of Dahl-Jensen, the former not being an employer of the latter.
We now correlate par. 5 of Art. 2180 with Art. 2184 of the same
Code which provides: "In motor vehicle mishap, the owner is
solidarily liable with his driver, if the former, who was in the
vehicle, could have by the use of due diligence, prevented the
misfortune . . . . If the owner was not in the motor vehicle, the
provisions of article 2180 are applicable." Obviously, this
provision of Art. 2184 is neither applicable because of the
absence of master-driver relationship between respondent
FILCAR and Dahl-Jensen. Clearly, petitioner has no cause of
action against respondent FILCAR on the basis of quasi-delict;
logically, its claim against respondent FORTUNE can neither
prosper.
Petitioner's insistence on MYC-Agro-Industrial Corporation is
rooted in a misapprehension of our ruling therein. In that case,
the negligent and reckless operation of the truck owned by
petitioner corporation caused injuries to several persons and
damage to property. Intending to exculpate itself from liability,
the corporation raised the defense that at the time of the
collision it had no more control over the vehicle as it was
leased to another; and, that the driver was not its employee but
of the lessee. The trial court was not persuaded as it found that
the true nature of the alleged lease contract was nothing more
than a disguise effected by the corporation to relieve itself of
the burdens and responsibilities of an employer. We upheld this
finding and affirmed the declaration of joint and several liability
of the corporation with its driver.
WHEREFORE, the petition is DENIED. The decision of
respondent Court of Appeals dated 31 January 1995 sustaining
the dismissal of petitioner's complaint by the trial court is
AFFIRMED. Costs against petitioner.
SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. L-24837           June 27, 1968
JULIAN C. SINGSON and RAMONA DEL
CASTILLO, plaintiffs, 

vs.

BANK OF THE PHILIPPINE ISLANDS and SANTIAGO
FREIXAS, in his capacity as President of the said
Bank, defendants.
CONCEPCION, C.J.:
Appeal by plaintiffs, Julian Singson and his wife, Ramona del
Castillo, from a decision of the Court of First Instance of
Manila dismissing their complaint against defendants herein,
the Bank of the Philippine Islands and Santiago Freixas.
It appears that Singson, was one of the defendants in civil case
No. 23906 of the Court of First Instance, Manila, in which
judgment had been rendered sentencing him and his co-
defendants therein, namely, Celso Lobregat and Villa-Abrille &
Co., to pay the sum of P105,539.56 to the plaintiff therein,
Philippine Milling Co. Singson and Lobregat had seasonably
appealed from said judgment, but not Villa-Abrille & Co., as
against which said judgment, accordingly, became final and
executory. In due course, a writ of garnishment was
subsequently served upon the Bank of the Philippine Islands —
in which the Singsons had a current account — insofar as Villa-
Abrille's credits against the Bank were concerned. What
happened thereafter is set forth in the decision appealed from,
from which we quote:
Upon receipt of the said Writ of Garnishment, a clerk of the
bank in charge of all matters of execution and garnishment,
upon reading the name of the plaintiff herein in the title of the
Writ of Garnishment as a party defendants, without further
reading the body of the said garnishment and informing himself
that said garnishment was merely intended for the deposits of
defendant Villa-Abrille & Co., Valentin Teus, Fernando F. de
Villa-Abrille and Joaquin Bona, prepared a letter for the
signature of the President of the Bank informing the plaintiff
Julian C. Singson of the garnishment of his deposits by the
plaintiff in that case. Another letter was also prepared and
signed by the said President of the Bank for the Special Sheriff
dated April 17, 1963.
Subsequently, two checks issued by the plaintiff Julian C.
Singson, one for the amount of P383 in favor of B. M. Glass
Service dated April 16, 1963 and bearing No. C-424852, and
check No. C-394996 for the amount of P100 in favor of the
Lega Corporation, and drawn against the said Bank, were
deposited by the said drawers with the said bank. Believing that
the plaintiff Singson, the drawer of the check, had no more
control over the balance of his deposits in the said bank, the
checks were dishonored and were refused payment by the said
bank. After the first check was returned by the bank to the B.
M. Glass Service, the latter wrote plaintiff Julian C. Singson a
letter, dated April 19, 1963, advising him that his check for
P383.00 bearing No. C-424852 was not honored by the bank
for the reason that his account therein had already been
garnished. The said B. M. Glass Service further stated in the
said letter that they were constrained to close his credit account
with them. In view thereof, plaintiff Julian C. Singson wrote the
defendant bank a letter on April 19, 1963, claiming that his
name was not included in the Writ of Execution and Notice of
Garnishment, which was served upon the bank. The defendant
President Santiago Freixas of the said bank took steps to verify
this information and after having confirmed the same,
apologized to the plaintiff Julian C. Singson and wrote him a
letter dated April 22, 1963, requesting him to disregard their
letter of April 17, 1963, and that the action of garnishment from
his account had already been removed. A similar letter was
written by the said official of the bank on April 22, 1963 to the
Special Sheriff informing him that his letter dated April 17,
1963 to the said Special Sheriff was considered cancelled and
that they had already removed the Notice of Garnishment from
plaintiff Singson's account. Thus, the defendants lost no time to
rectify the mistake that had been inadvertently committed,
resulting in the temporary freezing of the account of the
plaintiff with the said bank for a short time.
On May 8, 1963, the Singsong commenced the present action
against the Bank and its president, Santiago Freixas, for
damages1  in consequence of said illegal freezing of plaintiffs'
account.
After appropriate proceedings, the Court of First Instance of
Manila rendered judgment dismissing the complaint upon the
ground that plaintiffs cannot recover from the defendants upon
the basis of a quasi-delict, because the relation between the
parties is contractual in nature; because this case does not fall
under Article 2219 of our Civil Code, upon which plaintiffs
rely; and because plaintiffs have not established the amount of
damages allegedly sustained by them.
The lower court held that plaintiffs' claim for damages cannot
be based upon a tort or quasi-delict, their relation with the
defendants being contractual in nature. We have repeatedly
held, however, that the existence of a contract between the
parties does not bar the commission of a tort by the one against
the order and the consequent recovery of damages therefor.
2   Indeed, this view has been, in effect, reiterated in a
In view, however, of the facts obtaining in the case at bar, and
considering, particularly, the circumstance, that the wrong done
to the plaintiff was remedied as soon as the President of the
bank realized the mistake he and his subordinate employee had
committed, the Court finds that an award of nominal damages
— the amount of which need not be proven4  — in the sum of
P1,000, in addition to attorney's fees in the sum of P500, would
suffice to vindicate plaintiff's rights.5
WHEREFORE, the judgment appealed from is hereby reversed,
and another one shall be entered sentencing the defendant Bank
of the Philippine Islands to pay to the plaintiffs said sums of
P1,000, as nominal damages, and P500, as attorney's fees, apart
from the costs. It is so ordered.

comparatively recent case. Thus, in Air France vs. Carrascoso,

3  involving an airplane passenger who, despite his first-class

ticket, had been illegally ousted from his first-class

accommodation and compelled to take a seat in the tourist
compartment, was held entitled to recover damages from the
air-carrier, upon the ground of tort on the latter's part, for,
although the relation between a passenger and a carrier is
"contractual both in origin and nature ... the act that breaks the
contract may also be a tort".
 Republic of the Philippines
 On June 8, 1925, in the City of Manila, there occurred a
SUPREME COURT
 collision between a street car of the Manila Electric Company,
Manila of which Sixto Eustaquio was the motorman, and a truck
belonging to the City of Manila. As a result of the collision, the
EN BANC truck was damaged in the sum of P1,788.27. Sixto Eustaquio
was prosecuted for the crime of damage to property and slight
G.R. No. L-29356          December 29, 1928 injuries through reckless imprudence. He was convicted by
final judgment and was sentenced to pay a fine P900, to
THE CITY OF MANILA, plaintiff-appellee, 
 indemnify the offended party, the City of Manila, in the sum of
vs.
 P1,788.27, with subsidary imprisonment in case of insolvency,
THE MANILA ELECTRIC COMPANY, defendant- and to pay the costs. Not being able to collect the indemnity
appellant. from the accused, the City of Manila began an action to
obtained payment from the Manila Electric Company. An
MALCOLM, J.:
allegation of the complaint was "That the defendant Manila
Electric Company as master of the said agent and servant, Sixto
The Manila Electric Company appeals from a judgment of the
Eustaquio, by virtue of its relation with the latter and by
Court of First Instance of Manila which condemns it to pay to
express provisions of law, is subsidiarily liable to the herein
the City of Manila the sum of P1,788.27, with legal interest
plaintiff for the sum of P1,788.27, representing the damages
from September 10, 1927, and with costs. While the case in its
caused by its agent and servant, the said Sixto Eustaquio, in the
fundamentals the cause suggested important questions which
discharge of his duties as motorman of the defendant's electric
possibly the parties have not entirely grasped. By way of
car." The principal special defense set up in the answer to the
preliminary statement, it also remains to be said that the
complaint was that the defendant had used all the diligence of a
numerous deliberations of the court on the case have disclosed
good father of a family to prevent the damage suffered by
conflicting views which it is difficult to reconcile. The present
plaintiff. At the trial, the parties agreed on certain stipulations
decision, therefore, will aim to present as best it may, the
and admissions. The Assistant City Fiscal also offered to
principles for which a majority of the court stand, leaving it to
present two witnesses, but the trial judge thought this
the individual member to dissent or other wise explain his vote
unnecessary and so took judicial cognizance of the decision and
as to him seems fit and proper.
the record in the criminal case which convicted the motorman,
all against the protest of counsel for the Manila Electric
Company who noted his exceptions. The adverse judgment is
now contested on the ground that the trial court committed two
errors, the first in admitting in evidence the documents marked
Exhibits A, B, C, D, E and F, constituting the record in the case
of the People of the Philippine Islands vs. Sixto Eustaquio; and
the second in not absolving the appellant from the complaint.
I. The first error plainly has merit. As a general rule, a record in
a criminal action cannot be admitted in evidence in a civil
action except by way of inducement or to show a collateral fact.
The very obvious reason is that the parties and the issues in a
criminal action and a civil action are not the same. It is
rudimentary that due process must be followed in the trial of all
causes. No man or entity may be condemmed without a day in
court. (Almeida Chantangco and Lete vs. Abaroa [1910], 218
U. s., 476; 40 Phil., 1056; Ed. A. Keller & Co. vs. Ellerman &
Bucknall Steamship Co. [1918], 38 Phil., 514.)
It needs to be repeated that the Manila Electric Company was
not a party at the trial of the criminal case. There is extant in the
record no indication that the Manila Electric Company had any
control over the proceedings in the criminal case. All that the
record in the criminal case showed was that the "abogado
defensor" (Attorney for the defense) was Antonio Carrascoso.
All that the record in the civil case showed was
"Comparecieron: . . . Por la entidad demandada The Manila
Electric Co., los abogados senores Antonio T. Carrascoso, Jr., y
Guillermo Cabrera" (Appearances: . . . For the defendant
Manila Electric Company attorneys Antonio T. Carrascoso, Jr.,
and Guillermo Cabrera). By a coincidence, Attorney Carrascoso
was both counsel for the defendant in the civil action. But there
is lacking any proof showing that the Manila Electric Company
supplied the lawyer for the accused in the criminal action and
so is concluded by the judgment there rendered. (By way of
parenthesis, it may be said further that the statements just made
are offered to meet the argument advanced during our
discussion to the effect that the court should treat the interests
of the Manila Electric Company as involved in both litigations
and should thus consider the company as a real party without
right now to protest against the judgment.)
It is our ruling that prejudicial error was committed in the
admission by the trial court of Exhibits A to F, but that since the
plaintiff made the proper offer to present its witnesses, the case
should be remanded for a new trial.
II. It has been suggested that having passed on the first error
that would be sufficient. Theoretically, that is true. Practically,
it is a fallacious argument. A new trial left unguided would
immediately raise questions which would need to be passed
upon eventually by this court. Also if the customary defense in
civil actions for damages is to be held sufficient, the new trial
would be fruitless and the appeal might just as well be
dismissed now as later, in view of the stipulations appearing in
the record.
We desire to pay our respect to the second error assigned and to
the point of whether or not a case of this character should be
governed by the provisions of the Penal Code or by the
provisions of the Civil Code.
The Penal Code authorizes the imposition of subsidiary liability
in default of the persons criminally liable. Article 20 of the
Penal Code provides that this subsidiary liability shall "apply to
masters, teachers, persons, and corporations engaged in any
kind of industry for felonies and misdemeanors committed by
their servants, pupils, workmen, apprentices, or employees in
the discharge of their duties." It is under this provision that the
City of Manila is attempting to collect damages from the
Manila Electric Company. If the Philippines still lay beneath
the dominion of Spain, the pronouncement of primary and
subsidiary liability would be takenn much as a matter of course.
(See decisions of the Supreme Court of Spain of October 10,
1884, January 3, 1887, June 15, 1989, March 6, 1897,
December 14, 1894, February 19, 1902; 2 Viada Codigo Penal
Comentado, 5th ed., pp. 487-497; 1 Hidalgo Codigo Penal, pp.
331-334; 1 Groizard Codigo Penal, pp. 736-738; Opinion of the
Fiscal of the Supreme Court of Justice of Spain of January 17,
1865, 22   Revista de Legislacion y Jurisprudencia, p.
412; Codigo Penal of Spain of 1928, art. 78.) The Penal Code
then takes cognizance of the Civil Code when in article 133 it is
provided: "Civil liability arising from felonies or misdemeanors
shall be extiguished in the same manner as other obligations, in
accordance with the rules of civil law."
In connection with the Penal Code, there must be taken into
view certain provisions of the Civil Code. Book IV, Title XVI,
Chapter II, of the Civil Code concerns obligations which arise
from fault or negligence. It is provided in article 1903 that the
obligation imposed for the damage to another caused by fault or
negligence is enforcible against those persons for whom
another is responsible. But it is added that "The liability
imposed by this article shall cease in case the persons subject
thereto prove that they exercised all the diligence of a good
father of a family to prevent the damage." Found prior to these
articles of the Civil Code in the Chapter of Title I, Book IV,
pertaining to general provisions of obligations, are articles 1092
and 1093. The first provides: "Civil obligations arising from
crimes or misdemeanors shall be governed by the provisions of
the Penal Code." The last mentioned provides: "Those arising
from wrongful or negligent acts or ommissions not punishable
by law shall be subject to the provisions of Chapter second of
Title sixteen of this book." — that is among others to the
provisions of article 1903 above-mentioned.
Manresa, speaking of article 1092 of the Civil Code, offers the
following comment:
The Penal Code treats of this matter, first, in Chapter II, Title 2,
of Book I, determining therein who are civilly liable for crimes
or misdemeanors and in what manner, and stating in Title 4 of
the same Book the extent and purposes of said obligations. Said
Book I ends with article 135, which makes express references
to the civil legislation, which reference, as may be seen, is also
made in other provisions.
In those mutual references of one legislation to another, there is
no doubt as to the application of one or the other, nor can they
be criticized, since they are well grounded.
The Civil Code refers to the Penal Code as the rule applicable
in the first place, since the latter determines and punishes the
acts giving rise to said obligations, or creates said obligations,
thereby determining their existence and is, therefore, for that
reason of preferential application. But, then, as the Penal Code
is concerned with, and is interested only in determining how the
civil obligation it creates comes into existence and develops
under the influence of the illicit character, it lays down only
those rules inspired by those motives; and once the connection
of that obligation with the criminal liability is established in its
provisions, with the consequences that may be inferred from
the fact that the former is based on the latter; and after an effort
has been made, within the sphere of that civil responsibility,
toward making the indemnification coextensive with the effects
of the crime, and a special necessity, which is characteristic of
punishment and is the subject matter of the Penal Code, has
been shown in the provisions regulating said liability, the Penal
Code, could not, without going beyond its one sphere, give all
the rules relative to said obligations, nor did it have any
necessity for doing so, because once the peculiar nature of said
obligations is saved by its provisions, the essence thereof
common to the other obligations must, as in the latter, be
defined by the civil law, which will thus become an important
source, although suppletory, of those derived from crime.
The peculiar rules of the Penal Code, as may be seen, are
inspired by those motives which, as we have stated, might
make them necessary for said Code to establish, as
distinguished from the criterion of the civil law with regard to
obligations in general. Thus, the fundamental declaration of
article 18 gives the connection of civil obligation with criminal
liability and explains the origin of the former: article 19 solves
the doubt which that connection, among certain liabilities, may
create, and determining its limits in the nature and
consequences of the act, it mentions those which are of a civil
nature, basing the civil liability upon principle of justice, and
rather upon casualty than upon liability of a criminal character.
The intention to make indemnification proportionate to the
nature and effects of the act, from which the obligation arises,
inspires the provisions contained in articles 121 to 124, both
inclusive; the necessity to distiguish, in order to give the
consequences which the crime may produce within the sphere
of civil law, whether or not the persons thereby bound are
guilty, prevails in article 128 and partly in article 122; article
125 gives the essential difference between the civil obligation
and the personal criminal liability, and dissipates a doubt
which, due to the latter's instranmissibility, might arise as to the
former by reason of its accessory character in connection with
the other, and by the intimate connection between both which
the crime or misdemeanor creates and the criminal law
declares; the influence of the severity on the punishment is
noted in articles 20 and 21, even though the latter coincide with
the criterion followed in analogous cases by the Civil Code, and
already deviating from the latter's criterion by reason of that
severity founded on the illicit origin of the obligations which it
declares, it provides for the latter a necessary solidarity in
article 127; and abandoning also the criterion of the civil law in
article 126, it establishes within that solidarity, not the
presumption of equal division which the latter provides in such
a case, but a prudent division which may, and generally must
be, unequal, in order that the influence of the different
participation in the crime or misdemeanor which is the origin of
the former may also reach the Civil obligation.
In all other respects, and even in some of those same features,
either by the express reference of the articles which provide for
them, or by the latter's influence, the civil obligation shall be
subject to the Civil Code, which even in some of those peculiar
rules has supposed a modification in so far as it does not
establish the benefit of exemption to the extent needed for
support, as provided for in the Penal Code.
While the Civil Code, in its article 1092, simply makes
reference to the Penal Code, yet, it is beyond doubt that by this
reference it means those rules of a general nature which
regulate the civil liability arising from the particular crimes or
misdemeanors therein mentioned, and that, in connection
therewith, they shall have the preferential application which
this article recognizes in favor of the Penal Code. (8
Manresa Codigo Civil Espanol, 3d ed., pp. 28-32.)
The case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7
Phil., 359), is one of the widest known authorities on the
subject of damages. But that was strickly a civil action not
predicated on or related to a criminal action. It was said:
"Inasmuch as no criminal proceeding had been instituted,
growing out of the accident in question, the provisions of the
Penal Code cannot affect this action. This construction renders
it necessary to finally determine here whether this subsidary
civil liability in penal actions has survived the laws that fully
regulated it or has been abrogated by the American civil and
criminal procedure now in force in the Philippines." That such
subsidiary civil liability in penal actions has not been abrogated
by later laws, seems fairly well established. Section 107 of the
Code of Criminal Procedure recognizes the rights of persons
injured by the offense to take part in the prosecution of the
offense and to recover damages. It is there provided that "the
court upon conviction of the accused may enter judgment
against him for the damages occasioned by his wrongful act."
Authoritative decisions have also leaned in the direction of
taking it for granted that civil liability could be fixed in the
criminal action. While the law of criminal procedure is silent on
the subject of subsidiary liability, so far as we can see, there
could exist no good reason for not permitting the action to eb
carried forward to the second stage and there to fix subsidiary
liability.
With this preliminary point out of the way, there is no escaping
the conclusion that the provisions of the Penal Code govern.
The Penal Code in easily understandable language authorizes
the determination of subsidiary liability. The Civil Code
negatives its application by providing that civil obligations
arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman
was a misdemeanor falling under article 604 of the Penal Code.
The act of the motorman was not a wrongful or negligent act or
ommision not punishable by law. Accordingly, the civil
obligation connected up with Penal Code and not with article
1903 of the Civil Code. In other words, the Penal Code affirms
its jurisdiction while the Civil Code negatives its jurisdiction.
This is a case of criminal negligence out of which civil liability
arises and not a case of civil negligence.
The decision of the United States Supreme Court in the case of
Almeida Chantangco and Lete vs. Abaroa, supra, should be
read in connection both with the discussion of the first
assignment of error and the question now before us. In that
decision, Mr. Justice Lurton, delivering the opinion of the court,
said:
The case is, however, one which we conceive must be governed
by the local law of the Philippine Islands, and the single
question to which we need address ourselves is as to whether
that law was right applied by the local tribunals.
Article 1902 of the Civil Code in force in the Philippine Islands
reads thus: "A person who, by an act or omission, causes
damage to another when there is fault or negligence, shall be
obliged to repair the damage so done." By articles 1092 and
1093 of the same Code provision is made for the enforcement
of civil liability, varying in character according to the origin of
the liability. Thus, article 1092 provides that civil obligations
arising from crimes and misdemeanors shall be governed by the
provisions of the Penal Code. On the other hand, article 1093
provides that "those arising from acts or omissions, in which
fault or negligence, not punished by law, occurs, shall be
subject to the provisions of chapter second of title sixteen of
this book." The action here involved comes directly under
article 1092, above set out, and is not an action arising from
"fault or negligence, not punished by law." The complaint
alleges that the act of burning was "malicious and unlawful,"
and not that it was the result of any "fault or negligence." This
was the construction placed upon the complaint by both the
courts below, and is a construction not challenged here. It
follows that he must turn to the Penal Code to discover when a
civil action arises out of a crime or misdemeanor, and the
procedure of the enforcement of such civil liability. Article 17
of the Penal Code reads as follows: "Every person criminally
liable for a crime or misdemeanor is also civilly liable." May
this civil liability be enforced without a prior legal
determination of the fact of the defendant's guilt of crime? Does
civil liability exist at all if the defendant has been found not
guilty of the acts out of which the civil liability arises? The
opinion of the Court below was that a judgment of conviction
was essential to an action for indemnification under the
applicable local law. To this conclusion we assent, upon the
following considerations:
First, by the positive legislation of the Philippine Codes, civil
and criminal, a distinction is drawn between a civil liability
which results from the mere negligence of the defendant and a
liability for the civil consequences of a crime by which another
has sustained loss or injury.
Second, the plain inference from article 17, above set out, is
that civil liability springs out of and is dependent upon facts
which, if true, would constitute a crime or misdemeanor.
Third, the Philippine Code of Procedure plainly contemplates
that the civil liability of the defendant shall be ascertained and
declared in the criminal proceedings.1awphi1.net
Thus, section 742 of the Code of Criminal Procedure, after
requiring that, in the criminal proceeding, all of the minor or
incidental offenses included in the principal crime shall be
decided, adds: "All questions relating to the civil liability which
may have been the subject-matter of the charge shall be decided
in the sentence.
The foregoing considerations eliminate any question of the
effect of such a judgment of acquittal undere the principles of
the common law and require an affirmance of the judgment of
the court below as properly based upon the applicable
substantive law of the Philippine Islands, which has not been
superseded by legislation since the establishment of the present
Philippine Government.
The facts here are distinguishable from those in Chaves and
Garcia vs. Manila Electric Railroad and Light Company
([1915], 31 Phil., 47). In the cited case, while the motorman
was prosecuted and convicted, his sentence included no
imposition of civil liability. So the court correctly held,
although without discussion, that the employer was not liable in
damages resulting from the criminal negligence of his
employee, when he has exercised the care of a good father of a
family in selecting said employee.
In the later decision of this court in Francisco vs. Onrubia
([1924], 46 Phil., 327), the court gave attention to a similar
question. Speaking through Mr. Justice Villamor, the court
reached the following conclusions:
Article 1902 of the Civil Code has no application in the instant
case, first, because said article presupposes the existence of
fault or negligence upon which the action is based, and second,
it refers to a fault or negligence not punishable by law, because
if the fault or negligence is punished by law, it ceases to be
the quasi crime of negligence having purely civil effects, and
becomes a crime or misdemeanor, according to the gravity of
the penalty imposed by the law, and in that case it comes within
the purview of article 1092 of the Civil Code. Under the facts
set forth in the complaint, if there was any fault or negligence
on the part of the defendant, it must necessarily be a fault
punishable by law (arts. 586, 590, and 604 of the Penal Code),
for through said fault he caused the death of the plaintiff's son.
Homicide through reckless imprudence is punished as a crime,
and therefore the provisions applicable would be those of the
Penal Code and the Law of Criminal Procedure above cited.
Our deduction, therefore, is that the case relates to the Penal Republic of the Philippines

Code and not to the Civil Code. Indeed, as pointed out by the SUPREME COURT

trial judge, any different ruling would premit the master to Manila
escape scot-free by allging and proving that the master had
exercised all diligence in the selection and training of its EN BANC
servants to prevent the damage. That would be good defense to
a strictly civil action, but might or might not be to a civil action G.R. No. L-7567            November 12, 1912
or misdemeanor. (By way of parenthesis, it may be said further
THE UNITED STATES, plaintiff-appellee, 

that the statements here made are offered to meet the argument
vs.

advanced during our deliberations to the effect that article 1092
SEGUNDO BARIAS, defendant-appellant.
of the Civil Code should be disregarded and codal articles 1093
and 1903 applied.)
CARSON, J.:
In accordance with the foregoing, the judgment appealed from
This is an appeal from a sentence imposed by the Honorable A.
will be set aside, and the record remanded to the lower court for
S. Crossfield, judge of the Court of First Instance of Manila, for
a new trial. Without special finding as to costs in this instance,
homicide resulting from reckless negligence. The information
it will be so ordered.
charges:

That on or about November 2, 1911, in the city of Manila,

Philippine Islands, the said Segundo Barias was a motorman on
street car No. 9, run 7 of the Pasay-Cervantes lines of the
Manila Electric Railroad and Light Company, a corporation
duly organized and doing business in the city of Manila,
Philippine Islands; as a such motorman he was controlling and
operating said street car along Rizal Avenue, formerly Calle
Cervantes, of this city, and as such motorman of the said street
car he was under obligation to run the same with due care and
diligence to avoid any accident that might occur to vehicles and
pedestrians who were travelling on said Rizal Avenue; said
accused, at said time and place, did willfully, with reckless
imprudence and inexcusable negligence and in violation of the
regulations promulgated to that effect, control and operate said
street car, without heeding the pedestrians crossing Rizal
Avenue from one side to the other, thus knocking down and
causing by his carelessness and imprudent negligence that said
street car No. 9, operated and controlled by said accused, as
hereinbefore stated, should knock down and pass over the body
and head of one Fermina Jose, a girl 2 years old, who at said
time and place was crossing the said Rizal Avenue, the body of
said girl being dragged along street-car on said Rizal Avenue
for a long distance, thus crushing and destroying her head and
causing her sudden death as a result of the injury received; that
if the acts executed by the accused had been done with malice,
he would be guilty of the serious crime of homicide.
The defendant was a motorman for the Manila Electric Railroad
and Light Company. At about 6 o'clock on the morning of
November 2, 1911, he was driving his car along Rizal avenue
and stopped it near the intersection of that street with Calle
Requesen to take on some passengers. When the car stopped,
the defendant looked backward, presumably to note whether all
the passengers were aboard, and then started his car. At that
moment Fermina Jose, a child about 3 years old, walked or ran
in front of he car. She was knocked down and dragged some
little distance underneath the car, and was left dead upon the
track. The motorman proceeded with his car to the end of the
track, some distance from the place of the accident, and
apparently knew nothing of it until his return, when he was
informed of what happened.
There is no substantial dispute as to the facts. It is true that one
witness testified that the defendant started the car without
turning his head, and while he was still looking backwards and
that this testimony was directly contradicted by that of another
witness. But we do not deem it necessary to make an express
finding as to the precise direction in which the defendant's head
was turned at the moment when he started his car. It is
sufficient for the purpose of our decision to hold, as we do, that
the evidence clearly discloses that he started his car from a
standstill without looking over the track immediately in front of
the car to satisfy himself that it was clear. he did not see the
child until after he had run his car over it, and after he had
return to the place where it was found dead, and we think we
are justified in saying that whenever he was looking at the
moment when he started his car, he was not looking at the track
immediately in front of the car, and that he had not satisfied
himself that this portion of the tract was clear immediately
before putting the car in the motion.
The trial court found the defendant guilty of   imprudencia
temeraria (reckless negligence) as charged in the information,
and sentenced him to over one year and one month of
imprisonment in the Bilibid Prison, and to pay the cause of the
action.
The sole question raised by this appeal is whether the evidence
shows such carelessness or want of ordinary care on the part of
the defendant as to amount to reckless negligence (imprudencia
temeraria).
Judge Cooley in his work on Torts (3d ed., 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 circumstances justly demand, whereby
such other persons suffers injury."
In the case of U. S. vs. Nava, (1 Phil. Rep., 580), we held that:
"Reckless negligence consists of the failure to take such
precautions or advance measures in the performance of an act
as the most prudence would suggest whereby injury is caused
to persons or to property."
Silvela says in his "Derecho Penal," in speaking of reckless
imprudence (imprudencia temeraria):
The word "negligencia" used in the code, and the
term "imprudencia" with which this punishable act is defined,
express this idea in such a clear manner that it is not necessary
to enlarge upon it. He who has done everything on his part to
prevent his actions from causing damage to another, although
he has not succeeded in doing so, notwithstanding his efforts, is
the victim of an accident and can not be considered responsible
for the same. (Vol. 2, p. 127 [153].)
Temerario is, in our opinion, one who omits, with regard to this
actions, which are liable to cause injury to another, that care
and diligence, that attention, which can be required of the least
careful, attentive, or diligent. If a moment's attention and
reflection would have shown a person that the act which he was
about to perform was liable to have the harmful consequence
which it had, such person acted with temerity and may be guilty
of "imprudencia temeraria." It may be that in practice this idea
has been given a greater scope and the acts of imprudence
which did not show carelessness as carried to such high degree,
might have been punished as "imprudencia temeraria;" but in
our opinion, the proper meaning of the word does not authorize
another interpretation. (Id., p. 133 [161].)
Groizard, commenting upon "imprudencia temeraria," on page
389, volume 8, of his work on the Penal Code, says:
Prudence is that cardinal virtue which teaches us to discern and
distinguish the good from bad, in order to adopt or flee from it.
It also means good judgment, temperance, and moderation in
one's actions. `Temerario is one who exposes himself to danger
or rushes into it without reflection and without examining the
same. Consequently, he who from lack of good judgment,
temperance, or moderation in his actions, exposes himself
without reflection and examination to the danger of committing
a crime, must be held responsible under the provision of law
aforementioned.
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. (Ahern   vs. Oregon
Telephone Co., 24 Oreg., 276, 294; 35 Pac., 549.)
Ordinary care, if the danger is great, may arise to the grade of a
very exact and unchangeable attention. (Parry Mfg. Co.   vs.
Eaton, 41 Ind. App., 81, 1908; 83 N. E., 510.)
In the case of U. S. vs. Reyes (1 Phil. Rep., 375-377), we held
that: "The diligence with which the law requires the individual
at all the time to govern his conduct varies with the nature of
the situation in which he is placed and with the importance of
the act which he is to perform.lawph!l.net
The question to be determined then, is whether, under all the
circumstances, and having in mind the situation of the
defendant when he put his car in motion and ran it over the
child, he was guilty of a failure to take such precautions or
advance measures as common prudence would suggest.
The evidence shows that the thoroughfare on which the incident
occurred was a public street in a densely populated section of
the city. The hour was six in the morning, or about the time
when the residents of such streets begin to move about. Under
such conditions a motorman of an electric street car was clearly
charged with a high degree of diligence in the performance of
his duties. He was bound to know and to recognize that any
negligence on his part in observing the track over which he was
running his car might result in fatal accidents. He had no right
to assume that the track before his car was clear. It was his duty
to satisfy himself of that fact by keeping a sharp lookout, and to
do everything in his power to avoid the danger which is
necessarily incident to the operation of heavy street cars on
public thoroughfares in populous sections of the city.
Did he exercise the degree of diligence required of him? We
think this question must be answered in the negative. We do not
go so far as to say that having brought his car to a standstill it
was his bounden duty to keep his eyes directed to the front.
Indeed, in the absence of some regulation of his employers, we
can well understand that, at times, it might be highly proper and
prudent for him to glance back before again setting his car in
motion, to satisfy himself that he understood correctly a signal
to go forward or that all the passengers had safely alighted or
gotten on board. But we do insist that before setting his car
again in motion, it was his duty to satisfy himself that the track
was clear, and, for that purpose, to look and to see the track just
in front of his car. This the defendant did not do, and the result
of his negligence was the death of the child.
In the case of Smith vs. St. Paul City Ry. Co., (32 Minn., p. 1),
the supreme court of Minnesota, in discussing the diligence
required of street railway companies in the conduct of their
business observed that: "The defendant was a carrier of
passengers for hire, owing and controlling the tracks and cars
operated thereon. It is therefore subject to the rules applicable
to passenger carriers. (Thompson's Carriers, 442; Barrett   vs.
Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N.S.), 205.) As
respects hazards and dangers incident to the business or
employment, the law enjoins upon such carrier the highest
degree of care consistent with its undertaking, and it is
responsible for the slightest negligence. (Wilson vs. Northern
Pacific R. Co., 26 Minn., 278; Warren vs. Fitchburg R. Co., 8
Allen, 233; 43 Am. Dec. 354, 356, notes and cases.) . . . The
severe ruled which enjoins upon the carrier such extraordinary
care and diligence, is intended, for reasons of public policy, to
secure the safe carriage of passengers, in so far as human skill
and foresight can affect such result." The case just cited was a
civil case, and the doctrine therein announced had special
reference to the care which should be exercised in securing the
safety of passengers. But we hold that the reasons of public
policy which impose upon street car companies and their
employees the duty of exercising the utmost degree of diligence
in securing the safety of passengers, apply with equal force to
the duty of avoiding the infliction of injuries upon pedestrians
and others on the public streets and thoroughfares over which
these companies are authorized to run their cars. And while, in
a criminal case, the courts will require proof of the guilt of the
company or its employees beyond a reasonable doubt,
nevertheless the care or diligence required of the company and
its employees is the same in both cases, and the only question
to be determined is whether the proofs shows beyond a
reasonable doubt that the failure to exercise such care or
diligence was the cause of the accident, and that the defendant
was guilty thereof.
Counsel for the defendant insist that the accident might have
happened despite the exercise of the utmost care by the
defendant, and they have introduced photographs into the
record for the purpose of proving that while the motorman was
standing in his proper place on the front platform of the car, a
child might have walked up immediately in front of he car
without coming within the line of his vision. Examining the
photographs, we think that this contention may have some
foundation in fact; but only to this extent, that standing erect, at
the position he would ordinarily assume while the car is in
motion, the eye of the average motorman might just miss seeing
the top of the head of a child, about three years old, standing or
walking close up to the front of the car. But it is also very
evident that by inclining the head and shoulders forward very
slightly, and glancing in front of the car, a person in the position
of a motorman could not fail to see a child on the track
immediately in front of his car; and we hold that it is the
manifest duty of a motorman, who is about to start his car on a
public thoroughfare in a thickly-settled district, to satisfy
himself that the track is clear immediately in front of his car,
and to incline his body slightly forward, if that be necessary, in
order to bring the whole track within his line of vision. Of
course, this may not be, and usually is not necessary when the
car is in motion, but we think that it is required by the dictates
of the most ordinary prudence in starting from a standstill.
We are not unmindful of our remarks in the case of U. S. vs. front of the car. We think that the evidence showing, as it does,
Bacho (10 Phil. Rep., 577), to which our attention is directed by that the child was killed at the moment when the car was set in
counsel for appellant. In that case we said that: motion, we are justified in holding that, had the motorman seen
the child, he could have avoided the accident; the accident was
. . . In the general experience of mankind, accidents apparently not, therefore, "unavailable or inexplicable," and it appearing
avoidable and often inexplicable are unfortunately too frequent that the motorman, by the exercise of ordinary diligence, might
to permit us to conclude that some one must be criminally have seen the child before he set the car in motion, his failure to
liable for negligence in every case where an accident occurs. It satisfy himself that the track was clear before doing so was
is the duty of the prosecution in each case to prove by reckless negligence, of which he was properly convicted in the
competent evidence not only the existence of criminal court below.
negligence, but that the accused was guilty thereof.
We think, however, that the penalty should be reduced to that of
Nor do we overlook the ruling in the case of U. S. vs. Barnes six months and one day of prision correccional. Modified by
(12 Phil. Rep., 93), to which our attention is also invited, substituting for so much thereof as imposes the penalty of one
wherein we held that the defendant was not guilty of reckless year and one month of imprisonment, the penalty of six months
negligence, where it appeared that he killed another by the and one day of prision correccional, the judgment of the lower
discharge of his gun under such circumstances that he might court convicting and sentencing the appellant is affirmed, with
have been held guilty of criminally reckless negligence had he costs of both instances against him. So ordered.
had knowledge at that moment that another person was in such
position as to be in danger if the gun should be discharged. In
this latter case the defendant had no reason to anticipate that the
person who was injured was in the line of fire, or that there was
any probability that he or anyone else would place himself in
the line of fire. In the case at bar, however, it was, as we have
seen, the manifest duty of the motorman to take reasonable
precautions in starting his car to see that in doing so he was not
endangering the life of any pedestrian, old or young; and to this
end it was further his duty to guard against the reasonable
possibility that some one might be on the track immediately in
 Republic of the Philippines
 The facts of the case as found by the appellate court are as
SUPREME COURT
 follows:
Manila
In the morning of July 4, 1972 at about 8:00 o'clock, the
THIRD DIVISION accused Hedy Gan was driving a Toyota car along North Bay
Boulevard, Tondo, Manila. While in front of house no. 694 of
G.R. No. L-44264 September 19, 1988 North Bay Boulevard, there were two vehicles, a truck and a
jeepney parked on one side of the road, one following the other
HEDY GAN y YU, petitioner, 
 about two to three meters from each other. As the car driven by
vs.
 the accused approached the place where the two vehicles were
THE HONORABLE COURT OF APPEALS and the parked, there was a vehicle coming from the opposite direction,
PEOPLE OF THE PHILIPPINES, respondents. followed by another which tried to overtake and bypass the one
in front of it and thereby encroached the lane of the car driven
FERNAN, C.J.: by the accused. To avoid a head-on collision with the oncoming
vehicle, the defendant swerved to the right and as a
Petitioner Hedy Gan was convicted of the crime of Homicide
consequence, the front bumper of the Toyota Crown Sedan hit
thru Reckless Imprudence in Criminal Case No. 10201 of the
then Court of First Instance of Manila, Branch XXII presided an old man who was about to cross the boulevard from south to
by Judge Federico C. Alikpala. She was sentenced to an north, pinning him against the rear of the parked jeepney. The
indeterminate penalty of four (4) months and one (1) day force of the impact caused the parked jeepney to move forward
of   arresto mayor   as minimum and two (2) years, four (4) hitting the rear of the parts truck ahead of it. The pedestrian was
months and one (1) day of prision correccional as maximum injured, the Toyota Sedan was damaged on its front, the jeep
and was made to indemnify the heirs of the victim the sum of suffered damages on its rear and front paints, and the truck
P12,000.00 without any subsidiary imprisonment in case of
sustained scratches at the wooden portion of its rear. The body
insolvency and to pay the costs. On appeal, the trial court's
decision was modified and petitioner was convicted only of of the old man who was later Identified as Isidoro Casino was
Homicide thru Simple Imprudence. Still unsatisfied with the immediately brought to the Jose Reyes Memorial Hospital but
decision of the Court of Appeals,1  petitioner has come to this was (pronounced) dead on arrival.2
Court for a complete reversal of the judgment below.
An information for Homicide thru Reckless Imprudence was
filed against petitioner in view of the above incident. She
entered a plea of not guilty upon arraignment and the case was
set for trial.
Meanwhile, petitioner sought and was granted a re-
investigation by the City Fiscal, as a result of which the trial
fiscal moved for the dismissal of the case against petitioner
during the resumption of hearing on September 7, 1972. The
grounds cited therefor were lack of interest on the part of the
complaining witness to prosecute the case as evidenced by an
affidavit of desistance submitted to the trial court and lack of
eyewitness to sustain the charge.
The motion to dismiss filed by the fiscal was never resolved.
The Court instead ordered the prosecution to present its
evidence. After the prosecution rested its case, the petitioner
filed a motion to dismiss the case on the ground of insufficiency
of evidence.
On December 22, 1972, the trial court rendered judgment
finding petitioner guilty beyond reasonable doubt of the of-
offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R. No.
14472-CR. On May 3, 1976, the Court of Appeals rendered a
decision, the dispositive portion of which reads as follows:
Wherefore, as modified, the accused Hedy Gan is guilty beyond
reasonable doubt of the crime of homicide thru simple
imprudence and, pursuant to paragraph 2, Article 365 of the
Revised Penal Code, she is hereby sentenced to the
indeterminate penalty of three (3) months and eleven (11) days
of arresto mayor and to indemnify the heirs of Isidoro Casino
in the sum of Twelve Thousand Pesos (Pl2,000.00) without,
however, any subsidiary imprisonment in case of insolvency,
and to pay the costs. 3
Petitioner now appeals to this Court on the following
assignments of errors:
I
The Court of Appeals erred in holding that when the petitioner
saw a car travelling directly towards her, she should have
stepped on the brakes immediately or in swerving her vehicle to
the right should have also stepped on the brakes or lessened her
speed, to avoid the death of a pedestrian.
II
The Court of Appeals erred in convicting the petitioner of the
crime of Homicide thru Simple Imprudence.
III
The Court of Appeals erred in adjudging the petitioner liable to
indemnify the deceased in the sum of P12,000.00.4
We reverse.
The test for determining whether or not a person is negligent in
doing an act whereby injury or damage results to the person or
property of another is this: Would a prudent man in the position
of the person to whom negligence is attributed foresee harm to
the person injured as a reasonable consequence of the course
about to be pursued? If so, the law imposes the duty oil the doer
to take precaution against its mischievous results and the failure
to do so constitutes negligence. 5
A corollary rule is what is known in the law as the emergency
rule. "Under that rule, one who suddenly finds himself in a
place of danger, and is required to act without time to consider
the best means that may be adopted to avoid the impending
danger, is not guilty of negligence, if he fails to adopt what
subsequently and upon reflection may appear to have been a
better method, unless the emergency in which he finds himself
is brought about by his own negligence." 6
Applying the above test to the case at bar, we find the petitioner
not guilty of the crime of Simple Imprudence resulting in
Homicide. The appellate court in finding the petitioner guilty
said: The accused should have stepped on the brakes when she
saw the car going in the opposite direction followed by another
which overtook the first by passing towards its left. She should
not only have swerved the car she was driving to the right but
should have also tried to stop or lessen her speed so that she
would not bump into the pedestrian who was crossing at the
time but also the jeepney which was then parked along the
street. 7
The course of action suggested by the appellate court would
seem reasonable were it not for the fact that such suggestion did
not take into account the amount of time afforded petitioner to
react to the situation she was in. For it is undeniable that the
suggested course of action presupposes sufficient time for
appellant to analyze the situation confronting her and to ponder
on which of the different courses of action would result in the
least possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was presented by
the prosecution with respect to the relative distances of
petitioner to the parked jeepney and the oncoming overtaking
vehicle that would tend to prove that petitioner did have
sufficient time to reflect on the consequences of her instant
decision to swerve her car to the light without stepping on her
brakes. In fact, the evidence presented by the prosecution on
this point is the petitioner's statement to the police 8 stating::
And masasabi ko lang ho umiwas ho ako sa isang sasakyan
na biglang nagovertake sa sasakyan na aking kasalubong kung
kaya ay aking kinabig sa kanan ang akin kotse subalit siya
naman   biglangpagtawid ng tao o victim at   hindi ko na ho
naiwasan at ako ay wala ng magawa   . Iyan ho ang buong
pangyayari nang nasabing aksidente.9 (Emphasis supplied)
The prosecution having presented this exhibit as its own
evidence, we cannot but deem its veracity to have been
admitted by it. Thus, under the circumstances narrated by
petitioner, we find that the appellate court is asking too much
from a mere mortal like the petitioner who in the blink of an
eye had to exercise her best judgment to extricate herself from a
difficult and dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be expected to
act with all the coolness of a person under normal
conditions.  10  The danger confronting petitioner was real and
imminent, threatening her very existence. She had no
opportunity for rational thinking but only enough time to heed
the very powerfull instinct of self-preservation.
Also, the respondent court itself pronounced that the petitioner
was driving her car within the legal limits. We therefore rule
that the "emergency rule" enunciated above applies with full
force to the case at bar and consequently absolve petitioner
from any criminal negligence in connection with the incident
under consideration.
We further set aside the award of damages to the heirs of the
victim, who by executing a release of the claim due them, had
effectively and clearly waived their right thereto.
WHEREFORE, judgment is hereby rendered acquitting
petitioner HEDY GAN y YU of the crime of Homicide thru
Simple Imprudence. She is no longer liable for the P12,000.00
civil indemnity awarded by the appellate court to the heirs of
the victim.
SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. 131588       March 27, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.

GLENN DE LOS SANTOS, accused-appellant.
DAVIDE, JR., J.:
One may perhaps easily recall the gruesome and tragic event in
Cagayan de Oro City, reported over print and broadcast media,
which claimed the lives of several members of the Philippine
National Police (PNP) who were undergoing an "endurance
run" as part of the Special Counter Insurgency Operation Unit
Training. Not much effort was spared for the search of the one
responsible therefor, as herein accused-appellant Glenn de los
Santos (hereafter GLENN) immediately surrendered to cal
authorities. GLENN was then charged with the crimes of
Multiple Murder, Multiple Frustrated Murder, and Multiple
Attempted Murder in an information filed with the Regional
Trial Court of Cagayan de Oro City. The information reads as
follows:
That on or about October 05, 1995, in the early morning, at
Maitum Highway, within Barangay Puerto, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable the windshields of said Isuzu Elf, breaking said windshield, and
Court, the above-named accused, with deliberate intent to kill, upon being aware that bodies of the victims flew on the
taking advantage of his driven motor vehicle, an Isuzu Elf, and windshield of his driven vehicle, instead of applying his brake,
with treachery, did then and there willfully, unlawfully and continued to travel on a high speed, this time putting off its
feloniously kill and inflict mortal wounds from … behind in a headlights, thus hitting the succeeding joggers on said 1st  line,
sudden and unexpected manner with the use of said vehicle … as a result thereof the following were killed on the spot:
members of the Philippine National Police (PNP), undergoing a
Special Training Course (Scout Class 07-95), wearing black T- 1. Vincent Labis Rosal 7. Antonio Flores Lasco
shirts and black short pants, performing an "Endurance Run" of
35 kilometers coming from their camp in Manolo Fortich, 2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
Bukidnon, heading to Regional Training Headquarters in Camp
Alagar, Cagayan de Oro City, running in a column of 3, with a 3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
distance of two feet, more or less, from one trainee to another,
thus forming a [sic] three lines, with a length of more or less 50 4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
meters from the 1st   man to the last man, unable to defend
5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
themselves, because the accused ran or moved his driven
vehicle on the direction of the backs of the PNP joggers in spite 6. Arnulfo Limbago Jacutin 12. Rolando Paremcio
of the continuous warning signals made by six of the joggers, Pancito
namely: PO1 Allan Tabacon Espana, Waldon Sinda Sacro,
Lemuel Ybanez Pangca, Artemio Jamil Villaflor, Nardo Omasas
While another trainee/victim, Antonio Palomino Mino, died
Collantes and Joselito Buyser Escartin, who were at the rear
few days after the incident, while the following eleven (11)
echelon of said run, acting as guards, by continuously waving
other trainee/victims were seriously wounded, the accused thus
their hands at the accused for him to take the left lane of the
performing all the acts of execution which would produce the
highway, going to the City proper, from a distance of 100
crime of Murder as a consequence but nevertheless did not
meters away from the jogger’s rear portion, but which accused
produce it by reason of some cause other than said accused’s
failed and refused to heed; instead, he proceeded to operate his
spontaneous desistance, that is, by the timely and able medical
driven vehicle (an Isuzu Elf) on high speed directly towards the
assistance rendered on the following victims which prevented
joggers, thus forcing the rear hitting, bumping, or ramming the
their death, to wit:
first four (4) victims, causing the bodies to be thrown towards

1. Rey Go Boquis
2. Rene Tuako Calabria
3. Nonata Ibarra Erno
4. Rey Tamayo Estofil
5. Joel Rey Migue Galendez
6. Arman Neri Hernaiz
While the following Police Officers I (POI) sustained minor
injuries, to wit:
1. Romanito Andrada
2. Richard Canoy Caday
3. Rey Cayusa
4. Avelino Chua
5. Henry Gadis Coubeta
After which said accused thereafter escaped from the scene of
the incident, leaving behind the victims afore-enumerated
helpless.
7. Melchor Hinlo
8. Noel Ganzan Oclarit
9. Charito Penza Gepala
10. Victor Malicse Olavo
11. Bimbo Glade Polboroza
6. Romualdo Cotor Dacera
7. Ramil Rivas Gaisano
8. Dibangkita Magandang
9. Martin Olivero Pelarion
10. Flordicante Martin
Piligro
Contrary to Article 248, in relation to Article 6 of the Revised
Penal Code.
The evidence for the prosecution disclose that the Special
Counter Insurgency Operation Unit Training held at Camp
Damilag, Manolo Fortich, Bukidnon, started on 1 September
1995 and was to end on 15 October 1995. The last phase of the
training was the "endurance run" from said Camp to Camp
Alagar, Cagayan de Oro City. The run on 5 October 1995
started at 2:20 a.m. The PNP trainees were divided into three
columns; the first and second of which had 22 trainees each,
and the third had 21. The trainees were wearing black T-shirts,
black short pants, and green and black combat shoes. At the
start of the run, a Hummer vehicle tailed the jogging trainees.
When they reached Alae, the driver of the Hummer vehicle was
instructed to dispatch advanced security at strategic locations in
Carmen Hill. Since the jogging trainees were occupying the
right lane of the highway, two rear security guards were
assigned to each rear column. Their duty was to jog backwards
facing the oncoming vehicles and give hand signals for other
vehicles to take the left lane.1
Prosecution witnesses Lemuel Y. Pangca and Weldon Sacro
testified that they were assigned as rear guards of the first
column. They recalled that from Alae to Maitum Highway,
Puerto, Cagayan de Oro City, about 20 vehicles passed them,
all of which slowed down and took the left portion of the road
when signaled to do so.2
While they were negotiating Maitum Highway, they saw an
Isuzu Elf truck coming at high speed towards them. The vehicle
lights were in the high beam. At a distance of 100 meters, the
rear security guards started waving their hands for the vehicle
to take the other side of the road, but the vehicle just kept its
speed, apparently ignoring their signals and coming closer and
closer to them. Realizing that the vehicle would hit them, the
rear guards told their co-trainees to "retract." The guards
forthwith jumped in different directions. Lemuel and Weldon
saw their co-trainees being hit by the said vehicle, falling like
dominoes one after the other. Some were thrown, and others
were overrun by the vehicle. The driver did not reduce his
speed even after hitting the first and second columns. The
guards then stopped oncoming vehicles to prevent their
comrades from being hit again.3
The trial court judge, together with the City Prosecutor,
GLENN and his counsel, conducted an ocular inspection of the
place where the incident happened. They then proceeded to
inspect the Isuzu Elf at the police station. The City Prosecutor
manifested, thus:
The vehicle which we are now inspecting at the police station is
the same vehicle which [was] involved in the October 5, 1995
incident, an Isuzu Elf vehicle colored light blue with strips
painting along the side colored orange and yellow as well as in
front. We further manifest that … the windshield was totally
damaged and 2/3 portion of the front just below the windshield
was heavily dented as a consequence of the impact. The lower
portion was likewise damaged more particularly in the radiator
guard. The bumper of said vehicle was likewise heavily
damaged in fact there is a cut of the plastic used as a bumper;
that the right side of the headlight was likewise totally
damaged. The front signal light, right side was likewise
damaged. The side mirror was likewise totally damaged. The
height of the truck from the ground to the lower portion of the
windshield is 5 ft. and the height of the truck on the front level
is 5 ft.4
PO3 Jose Cabugwas testified that he was assigned at the
Investigation Division at Precinct 6, Cagayan de Oro City, and
that at 4 a.m. of 5 October 1995, several members of the PNP
came to their station and reported that they had been bumped
by a certain vehicle. Immediately after receiving the report, he
and two other policemen proceeded to the traffic scene to
conduct an ocular inspection. Only bloodstains and broken
particles of the hit-and-run vehicle remained on the highway.
They did not see any brake marks on the highway, which led
him to conclude that the brakes of the vehicle had not been
applied. The policemen measured the bloodstains and found
them to be 70 ft. long.5
GLENN’s version of the events that transpired that evening is
as follows:
At about 10:30 p.m. of 4 October 1995, he was asked by his
friend Enting Galindez and the latter’s fellow band members to
provide them with transportation, if possible an Isuzu Forward,
that would bring their band instruments, band utilities and band
members from Macasandig and Corrales, Cagayan de Oro City,
to Balingoan. From there, they were supposed to be taken to
Mambajao, Camiguin, to participate in the San Miguel-
sponsored "Sabado Nights" of the Lanzones Festival from 5-7
October 1995. It was the thirteenth time that Enting had asked
such a favor from him.6  Since the arrangement was to fetch
Galindez and his group at 4:00 a.m. of 5 October 1995,
GLENN immediately went to Cugman, Cagayan de Oro City,
to get his Isuzu Elf truck. After which, he proceeded back to his
house at Bugo, Cagayan de Oro City, and told his wife that he
would go to Bukidnon to get his aunt’s Isuzu Forward truck
because the twenty band members and nine utilities and band
instruments could not be accommodated in the Isuzu Elf truck.
Three of his friends asked to go along, namely, Roldan
Paltonag, Andot Peña, and a certain Akut.7
After leaving GLENN’s house, the group decided to stop at
Celebrity Plaza Restaurant. GLENN saw his "kumpare" Danilo
Cosin and the latter’s wife, and joined them at the table.
GLENN finished three bottles of pale pilsen beer. When the
Cosin spouses left, GLENN joined his travelling companions at
their table. The group left at 12:00 midnight for Bukidnon. The
environment was dark and foggy, with occasional rains. It took
them sometime looking for the Isuzu Forward truck. Finally,
they saw the truck in Agusan Canyon. Much to their
disappointment, the said truck had mechanical problems.
Hence, GLENN decided to go back to Cagayan de Oro City to
tell Enting that they would use the Isuzu Elf truck instead.8
GLENN drove slowly because the road was slippery. The
vicinity was dark: there was no moon or star; neither were there
lampposts. From the Alae junction, he and his companions used
the national highway, traversing the right lane going to
Cagayan de Oro City. At the vicinity of Mambatangan junction,
as the Elf was negotiating a left curve going slightly downward,
GLENN saw a very bright and glaring light coming from the
opposite direction of the national highway. GLENN blinked his
headlights as a signal for the other driver to switch his
headlights from bright to dim. GLENN switched his own lights
from bright to dim and reduced his speed from 80 to 60
kilometers per hour. It was only when the vehicles were at a
distance of 10 to 15 meters from each other that the other car’s
headlights were switched from bright to dim. As a result,
GLENN found it extremely hard to adjust from high brightness
to sudden darkness.9
It was while the truck was still cruising at a speed of 60 km./hr.,
and immediately after passing the oncoming vehicle, that
GLENN suddenly heard and felt bumping thuds. At the sound
of the first bumping thuds, GLENN put his right foot on the
brake pedal. But the impact was so sudden that he was
astonished and afraid. He was trembling and could not see what
were being bumped. At the succeeding bumping thuds, he was
not able to pump the brake, nor did he notice that his foot was
pushing the pedal. He returned to his senses only when one of
his companions woke up and said to him: "Gard, it seems we
bumped on something. Just relax, we might all die." Due to its
momentum, the Elf continued on its track and was able to stop
only when it was already very near the next curve.10
GLENN could not distinguish in the darkness what he had hit,
especially since the right headlights of the truck had been
busted upon the first bumping thuds. In his confusion and fear,
he immediately proceeded home. GLENN did not report the
incident to the Puerto Police Station because he was not aware
of what exactly he had hit. It was only when he reached his
house that he noticed that the grill of the truck was broken; the
side mirror and round mirror, missing; and the windshield,
splintered. Two hours later, he heard on Bombo Radyo that an
accident had occurred, and he realized that it was the PNP
group that he had hit. GLENN surrendered that same day to
Governor Emano.11
The defense also presented Crescente Galindez, as well as
Shirley Almazan of the PAG-ASA Office, Cagayan de Oro City.
The former testified that when he went to GLENN’s house at
about 10:00 p.m. of 4 October 1995, there was heavy rain; and
at 12:00 midnight, the rain was moderate. He corroborated
GLENN’s testimony that he (Cerscente) went to GLENN’s
house that evening in order to hire a truck that would bring the
band instruments, band utilities and band members from
Cagayan de Oro to Camiguin for the Lanzones Festival.
12   Almazan, on the other hand, testified that based on an
observed weather report within the vicinity of Cagayan de Oro
City, there was rain from 8:00 p.m. of October 1995 to 2:00
a.m. the next day; and the sky was overcast from 11:00 p.m. of
4 October 1995 to 5:00 a.m. of 5 October 1995. What she
meant by "overcast" is that there was no break in the sky; and,
definitely, the moon and stars could not be seen.13
The prosecution presented rebuttal witness Danilo Olarita
whose house was just 100 meters away from the place where
the incident occurred. He testified that he was awakened on that
fateful night by a series of loud thuds. Thereafter, a man came
to his house and asked for a glass of water, claiming to have
been hit by a vehicle. Danilo further stated that the weather at
the time was fair, and that the soil was dry and not muddy.14
In its decision of 26 August 1997, the trial court convicted
GLENN of the complex crime of multiple murder, multiple
frustrated murder and multiple attempted murder, with the use
of motor vehicle as the qualifying circumstance. It sentenced
him to suffer the penalty of death and ordered him to indemnify
each group of the heirs of the deceased in the amount of
P75,000; each of the victims of frustrated murder in the amount
of P30,000; and each of the victims of attempted murder in the
amount of P10,000.
Hence, this automatic review, wherein GLENN contends that
the trial court erred (a) in finding that he caused the Isuzu Elf
truck to hit the trainees even after seeing the rear guards waving
and the PNP trainees jogging; (b) in finding that he caused the
truck to run even faster after noticing the first thuds; and (c) in
finding that he could still have avoided the accident from a
distance of 150 meters, despite the bright and glaring light from
the oncoming vehicle.
In convicting GLENN, the trial court found that "the accused
out of mischief and dare-devilness [sic], in the exhilaration of
the night breeze and having dr[u]nk at least three bottles of beer
earlier, merely wanted to scare the rear guard[s] and see them
scamper away as they saw him and his vehicle coming at them
to ram them down."15
Likewise, the OSG posits that "the evil motive of the appellant
in injuring the jogging trainees was probably brought by the
fact that he had dr[u]nk a total of three (3) bottles of beer earlier
before the incident."16
Not to be outdone, the defense also advances another
speculation,   i.e., "the possibility that [GLENN] could have
fallen asleep out of sheer fatigue in that unholy hour of 3:30 in
the early morning, and thus was not able to stop his Isuzu Elf
truck when the bumping thuds were occurring in rapid
succession; and after he was able to wake up upon hearing the
shout of his companions, it was already too late, as the bumping
thuds had already occurred."17
Considering that death penalty is involved, the trial court
should have been more scrupulous in weighing the evidence. It
we are to subscribe to the trial court’s finding that GLENN
must have merely wanted to scare the rear guards, then intent to
kill was wanting. In the absence of a criminal intent, he cannot
be held liable for an intentional felony. All reasonable doubt
intended to demonstrate negligence, and not criminal intent,
should be indulged.18
From the convergence of circumstances, we are inclined to
believe that the tragic event was more a product of reckless
imprudence than of a malicious intent on GLENN’s part.
First, as testified to by prosecution rebuttal witness Danilo
Olarita, the place of the incident was "very dark," as there was
no moon. And according to PAG-ASA’s observed weather
report within the vicinity of Cagayan de Oro City covering a
radius of 50 kilometers, at the time the event took place, the sky
was overcast, i.e., there was absolutely no break in the thick
clouds covering the celestial dome globe; hence, there was no
way for the moon and stars to be seen. Neither were there
lampposts that illuminated the highway.1âwphi1.nêt
Second, the jogging trainees and the rear guards were all
wearing black T-shirts, black short pants, and black and green
combat shoes, which made them hard to make out on that dark
and cloudy night. The rear guards had neither reflectorized
vests or gloves nor flashlights in giving hand signals.
Third, GLENN was driving on the proper side of the road, the
right lane. On the other hand, the jogging trainees were
occupying the wrong lane, the same lane as GLENN’s vehicle
was traversing. Worse, they were facing the same direction as
GLENN’s truck such that their backs were turned towards the
oncoming vehicles from behind.
Fourth, no convincing evidence was presented to rebut
GLENN’s testimony that he had been momentarily blinded by
the very bright and glaring lights of the oncoming vehicle at the
opposite direction as his truck rounded the curve. He must have
been still reeling from the blinding effect of the lights coming
from the other vehicle when he plowed into the group of police
trainees.
Indeed, as pointed out by appellant, instinct tells one ‘to stop or
swerve to a safe place the moment he sees a cow, dog, or cat on
the road, in order to avoid bumping or killing the same"; and
more so if the one on the road is a person. It would therefore be
inconceivable for GLENN, then a young college graduate with
a pregnant wife and three very young children who were
dependent on him for support, to have deliberately hit the group
with his truck.
The conclusion of the trial court and the OSG the GLENN
intentionally rammed and hit the jogging trainees was premised
on the assumption that despite the first bumping thuds, he
continued to accelerate his vehicle instead of applying his
brakes, as shown by the absence of brake marks or skid marks
along the traffic scene.
For its part, the defense attributed the continuous movement of
GLENN’s vehicle to the confluence of the following factors:
1. The Isuzu Elf truck, a huge vehicle, was moving fast that
even if the brakes were applied the truck would have still
proceeded further on account of its momentum, albeit at a
reduced speed, and would have stopped only after a certain
distance.
2. The national highway, from Alae to Puerto, Cagayan de Oro
City, was made of fine and smooth asphalt, free from
obstructions on the road such as potholes or excavations.
Moreover, the highway was going a little bit downward, more
particularly from the first curve to the place of incident. Hence,
it was easier and faster to traverse a distance "20 to 25 meters
which was the approximate aggregate distance" from the first
elements up to the 22nd or 23rd elements of the columns.
3. The weight of each of the trainees (the average of which
could be 50 kilograms only) could hardly make an impact on
the 3,900 kilograms truck, which was moving at a speed
ranging from 60 to 70 kilometers per hour.
4. Considering that the width of the truck from the right to the
left tires was wide and the under chassis was elevated, the truck
could just pass over two persons lying flat on the ground
without its rubber tires running over the bodies. Thus, GLENN
would not notice any destabilization of the rubber tires.
5. Since the police trainees were jogging in the same direction
as the truck was proceeding, the forward movements
constituted a force parallel to the momentum of the forward-
moving truck such that there was even much lesser force
resisting the said ongoing momentum.
It is a well-entrenched rule that if the inculpatory facts are
capable of two or more explanations – one consistent with the
innocence or lesser degree of liability of the accused, and the
other consistent with his guilt or graver responsibility – the
Court should adopt the explanation which is more favorable to
the accused.19
We are convinced that the incident, tragic though it was in light
of the number of persons killed and seriously injured, was an
accident and not an intentional felony. It is significant to note
that there is no shred of evidence that GLENN had an axe to
grind against the police trainees that would drive him into
deliberately hitting them with intent to kill.
Although proof of motive is not indispensable to a conviction
especially where the assailant is positively identified, such
proof is, nonetheless, important in determining which of two
conflicting theories of the incident is more likely to be true.
20   Thus, in   People v. Godinez,21   this Court said that the
existence of a motive on the part of the accused becomes
decisive in determining the probability or credibility of his
version that the shooting was purely accidental.
Neither is there any showing of "a political angle of a leftist-
sponsored massacre of police elements disguised in a vehicular
accident."22 Even if there be such evidence, i.e., that the motive
of the killing was in furtherance of a rebellion movement,
GLENN cannot be convicted because if such were the case, the
proper charge would be rebellion, and not murder.23
GLENN’s offense is in failing to apply the brakes, or to swerve
his vehicle to the left or to a safe place the movement he heard
and felt the first bumping thuds. Had he done so, many trainees
would have been spared.
We have once said:
A man must use common sense, and exercise due reflection in
all his acts; it is his duty to be cautious, careful, and prudent, if
not from instinct, then through fear of incurring punishment. He
is responsible for such results as anyone might foresee and for
acts which no one would have performed except through
culpable abandon. Otherwise his own person, rights and
property, and those of his fellow-beings, would ever be exposed
to all manner of danger and injury.24
The test for determining whether a person is negligent in doing
an act whereby injury or damage results to the person or
property of another is this: Could a prudent man, in the position
of the person to whom negligence is attributed, foresee harm to
the person injured as a reasonable consequence of the course
actually pursued? If so, the law imposes a duty on the actor to
refrain from that course or to take precautions to guard against
its mischievous results, and the failure to do so constitutes
negligence. Reasonable foresight of harm, followed by the
ignoring of the admonition born of this prevision, is always
necessary before negligence can be held to exist.25
GLENN showed an inexcusable lack of precaution. Article 365
of the Revised Penal Code states that reckless imprudence
consists in voluntarily, but without malice, doing or failing to
do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into
consideration (1) his employment or occupation; (2) his degree
of intelligence; (4) his physical condition; and (3) other
circumstances regarding persons, time and place.
GLENN, being then a young college graduate and an
experienced driver, should have known to apply the brakes or
swerve to a safe place immediately upon hearing the first
bumping thuds to avoid further hitting the other trainees. By his
own testimony, it was established that the road was slippery and
slightly going downward; and, worse, the place of the incident
was foggy and dark. He should have observed due care in
accordance with the conduct of a reasonably prudent man, such
as by slackening his speed, applying his brakes, or turning to
the left side even if it would mean entering the opposite lane
(there being no evidence that a vehicle was coming from the
opposite direction). It is highly probable that he was driving at
high speed at the time. And even if he was driving within the
speed limits, this did not mean that he was exercising due care
under the existing circumstances and conditions at the time.
Considering that the incident was not a product of a malicious
intent but rather the result of a single act of reckless driving,
GLENN should be held guilty of the complex crime of reckless
imprudence resulting in multiple homicide with serious
physical injuries and less serious physical injuries.
Article 48 of the Revised Penal Code provides that when the
single act constitutes two or more grave or less grave felonies,
or when an offense is a necessary means for committing the
other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period. Since Article 48
speaks of felonies, it is applicable to crimes through negligence
in view of the definition of felonies in Article 3 as "acts or
omissions punishable by law" committed either by means of
deceit {dolo) or fault (culpa).26 In Reodica v. Court of Appeals,
27 we ruled that if a reckless, imprudent, or negligent act results
in two or more grave or less grave felonies, a complex crime is
committed. Thus, in Lapuz v. Court of Appeals,28  the accused
was convicted, in conformity with Article 48 of the Revised
Penal Code, of the complex crime of "homicide with serious
physical injuries and damage to property through reckless
imprudence," and was sentenced to a single penalty of
imprisonment, instead of the two penalties imposed by the trial
court. Also, in Soriao v. Court of Appeals,29  the accused was
convicted of the complex crime of "multiple homicide with
damage to property through reckless imprudence" for causing a
motor boat to capsize, thereby drowning to death its twenty-
eight passengers.
The slight physical injuries caused by GLENN to the ten other
victims through reckless imprudence, would, had they been
intentional, have constituted light felonies. Being light felonies,
which are not covered by Article 48, they should be treated and
punished as separate offenses. Separate informations should
have, therefore, been filed.
It must be noted that only one information (for multiple murder,
multiple frustrated murder and multiple attempted murder) was
filed with the trial court. However, nothing appears in the
record that GLENN objected to the multiplicity of the
information in a motion to quash before his arraignment.
Hence, he is deemed to have waived such defect.30Under
Section 3, Rule 120 of the Rules of Court, when two or more
offenses are charged in a single complaint or information and
the accused fails to object to it before trial, the court may
convict the accused of as many offenses as are charged and
proved, and impose on him the penalty for each of them.
Now, we come to the penalty. Under Article 365 of the Revised
Penal Code, any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute
a grave felony shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period;
and if it would have constituted a light felony, the penalty
of arresto menor in its maximum period shall be imposed. The
last paragraph thereof provides that the penalty next higher in
degree shall be imposed upon the offender who fails to lend on
the spot to the injured parties such help as may be in his hand to
give. This failure to render assistance to the victim, therefore,
constitutes a qualifying circumstance because the presence
thereof raises the penalty by one degree.31Moreover, the fifth
paragraph thereof provides that in the imposition of the penalty,
the court shall exercise its sound discretion without regard to
the rules prescribed in Article 64. Elsewise stated, in felonies
through imprudence or negligence, modifying circumstances
need not be considered in the imposition of the penalty.32
In the case at bar, it has been alleged in the information and
proved during the trial that GLENN "escaped from the scene of
the incident, leaving behind the victims." It being crystal clear
that GLENN failed to render aid to the victims, the penalty
provided for under Article 365 shall be raised by one degree.
Hence, for reckless imprudence resulting in multiple homicide
with serious physical injuries and less serious physical injuries,
the penalty would be   prision correccional   in its maximum
period to prision mayor in its medium period. Applying Article
48, the maximum of said penalty, which is prision mayor in its
medium period, should be imposed. For the separate offenses of
reckless imprudence resulting in slight physical injuries,
GLENN may be sentenced to suffer, for each count, the penalty
of   arresto mayor   in its minimum period. Although it was
established through the testimonies of prosecution witness
Lemuel Pangca33  and of GLENN that the latter surrendered to
Governor Emano of Misamis Oriental, such mitigating
circumstance need not be considered pursuant to the aforestated
fifth paragraph of Article 365.
Under the Indeterminate Sentence Law, GLENN may be multiple homicide with serious physical injuries and less
sentenced to suffer an indeterminate penalty whose minimum is serious physical injuries, and sentencing him to suffer an
within the range of the penalty next lower in degree to that indeterminate penalty of four (4) years of prision correccional,
prescribed for the offense, and whose maximum is that which as minimum, to ten (10) years of prision mayor, as maximum;
could properly be imposed taking into account the modifying and (2) ten (10) counts of reckless imprudence resulting in
circumstances. Hence, for the complex crime of reckless slight physical injuries and sentencing him, for each count, to
imprudence resulting in multiple homicide with serious the penalty of two (2) months of arresto mayor. Furthermore,
physical injuries and less serious physical injuries, qualified by the awards of death indemnity for each group of heirs of the
his failure to render assistance to the victims, he may be trainees killed are reduced to P50,000; and the awards in favor
sentenced to suffer an indeterminate penalty ranging of the other victims are deleted. Costs against accused-
from   arresto mayor   in its maximum period to   prision appellant. SO ORDERED.
correccional   in its medium period, as minimum, to   prision
mayor in its medium period, as maximum. As to the crimes of
reckless imprudence resulting in slight physical injuries, since
the maximum term for each count is only two months the
Indeterminate Sentence Law will not apply. As far as the award
of damages is concerned, we find a necessity to modify the
same. Conformably with current jurisprudence,34 we reduce the
trial court’s award of death indemnity from P75,000 to P50,000
for each group of heirs of the trainees killed. Likewise, for lack
of factual basis, we delete the awards of P30,000 to each of
those who suffered serious physical injuries and of P10,000 to
each of those who suffered minor physical injuries.

WHEREFORE,   the decision of the Regional Trial Court,

Branch 38, Cagayan de Oro City, is hereby SET ASIDE, and
another one is rendered holding herein accused-appellant
GLENN DE LOS SANTOS guilty beyond reasonable doubt of
(1) the complex crime of reckless imprudence resulting in
 Republic of the Philippines
 Construction Inc. ("Phoenix"), was parked on the right hand
SUPREME COURT
 side of General Lacuna Street (i.e., on the right hand side of a
Manila person facing in the same direction toward which Dionisio's car
was proceeding), facing the oncoming traffic. The dump truck
FIRST DIVISION was parked askew (not parallel to the street curb) in such a
manner as to stick out onto the street, partly blocking the way
G.R. No. L-65295 March 10, 1987 of oncoming traffic. There were no lights nor any so-called
"early warning" reflector devices set anywhere near the dump
PHOENIX CONSTRUCTION, INC. and ARMANDO U. truck, front or rear. The dump truck had earlier that evening
CARBONEL, petitioners, 
 been driven home by petitioner Armando U. Carbonel, its
vs.
 regular driver, with the permission of his employer Phoenix, in
THE INTERMEDIATE APPELLATE COURT and view of work scheduled to be carried out early the following
LEONARDO DIONISIO, respondents. 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
FELICIANO, J:
smashed into the dump truck. As a result of the collision,
Dionisio suffered some physical injuries including some
In the early morning of 15 November 1975 — at about 1:30
permanent facial scars, a "nervous breakdown" and loss of two
a.m. — private respondent Leonardo Dionisio was on his way
gold bridge dentures.
home — he lived in 1214-B Zamora Street, Bangkal, Makati —
from a cocktails-and-dinner meeting with his boss, the general
Dionisio commenced an action for damages in the Court of
manager of a marketing corporation. During the cocktails phase
First Instance of Pampanga basically claiming that the legal and
of the evening, Dionisio had taken "a shot or two" of liquor.
proximate cause of his injuries was the negligent manner in
Dionisio was driving his Volkswagen car and had just crossed
which Carbonel had parked the dump truck entrusted to him by
the intersection of General Lacuna and General Santos Streets
his employer Phoenix. Phoenix and Carbonel, on the other
at Bangkal, Makati, not far from his home, and was proceeding
hand, countered that the proximate cause of Dionisio's injuries
down General Lacuna Street, when his car headlights (in his
was his own recklessness in driving fast at the time of the
allegation) suddenly failed. He switched his headlights on
accident, while under the influence of liquor, without his
"bright" and thereupon he saw a Ford dump truck looming
headlights on and without a curfew pass. Phoenix also sought to
some 2-1/2 meters away from his car. The dump truck, owned
by and registered in the name of petitioner Phoenix
establish that it had exercised due rare in the selection and
supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and
against Phoenix and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00
for hospital bills and the replacement of the lost dentures of
plaintiff;
(2) To pay plaintiff jointly and severally the sum of P
1,50,000.-00 as loss of expected income for plaintiff brought
about the accident in controversy and which is the result of the
negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P
10,000. as moral damages for the unexpected and sudden
withdrawal of plaintiff from his lifetime career as a marketing
man; mental anguish, wounded feeling, serious anxiety, social
humiliation, besmirched reputation, feeling of economic
insecurity, and the untold sorrows and frustration in life
experienced by plaintiff and his family since the accident in
controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00
as damages for the wanton disregard of defendants to settle
amicably this case with the plaintiff before the filing of this
case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P
4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate
Court. That court in CA-G.R. No. 65476 affirmed the decision
of the trial court but modified the award of damages to the
following extent:
1. The award of P15,000.00 as compensatory damages was
reduced to P6,460.71, the latter being the only amount that the
appellate court found the plaintiff to have proved as actually
sustained by him;
2. The award of P150,000.00 as loss of expected income was
reduced to   P100,000.00,   basically because Dionisio had
voluntarily resigned his job such that, in the opinion of the
appellate court, his loss of income "was not solely attributable
to the accident in question;" and
3. The award of P100,000.00 as moral damages was held by the
appellate court as excessive and unconscionable and hence
reduced to P50,000.00.
The award of   P10,000.00   as exemplary damages
and P4,500.00 as attorney's fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before
us on a petition for review.
Both the trial court and the appellate court had made fairly
explicit findings of fact relating to the manner in which the
dump truck was parked along General Lacuna Street on the
basis of which both courts drew the inference that there was
negligence on the part of Carbonel, the dump truck driver, and
that this negligence was the proximate cause of the accident
and Dionisio's injuries. We note, however, that both courts
failed to pass upon the defense raised by Carbonel and Phoenix
that the true legal and proximate cause of the accident was not
the way in which the dump truck had been parked but rather the
reckless way in which Dionisio had driven his car that night
when he smashed into the dump truck. The Intermediate
Appellate Court in its questioned decision casually conceded
that Dionisio was "in some way, negligent" but apparently
failed to see the relevance of Dionisio's negligence and made
no further mention of it. We have examined the record both
before the trial court and the Intermediate Appellate Court and
we find that both parties had placed into the record sufficient
evidence on the basis of which the trial court and the appellate
court could have and should have made findings of fact relating
to the alleged reckless manner in which Dionisio drove his car
that night. The petitioners Phoenix and Carbonel contend that if
there was negligence in the manner in which the dump truck
was parked, that negligence was merely a "passive and static
condition" and that private respondent Dionisio's recklessness
constituted an intervening, efficient cause determinative of the
accident and the injuries he sustained. The need to administer
substantial justice as between the parties in this case, without
having to remand it back to the trial court after eleven years,
compels us to address directly the contention put forward by
the petitioners and to examine for ourselves the record
pertaining to Dionisio's alleged negligence which must bear
upon the liability, or extent of liability, of Phoenix and
Carbonel.
There are four factual issues that need to be looked into: (a)
whether or not private respondent Dionisio had a curfew pass
valid and effective for that eventful night; (b) whether Dionisio
was driving fast or speeding just before the collision with the
dump truck; (c) whether Dionisio had purposely turned off his
car's headlights before contact with the dump truck or whether
those headlights accidentally malfunctioned moments before
the collision; and (d) whether Dionisio was intoxicated at the
time of the accident.
As to the first issue relating to the curfew pass, it is clear that no
curfew pass was found on the person of Dionisio immediately
after the accident nor was any found in his car. Phoenix's
evidence here consisted of the testimony of Patrolman Cuyno
who had taken Dionisio, unconscious, to the Makati Medical
Center for emergency treatment immediately after the accident.
At the Makati Medical Center, a nurse took off Dionisio's
clothes and examined them along with the contents of pockets
together with Patrolman Cuyno. 1 Private respondent Dionisio
was not able to produce any curfew pass during the trial.
Instead, he offered the explanation that his family may have
misplaced his curfew pass. He also offered a certification (dated
two years after the accident) issued by one Major Benjamin N.
Libarnes of the Zone Integrated Police Intelligence Unit of
Camp Olivas, San Fernando, Pampanga, which was said to
have authority to issue curfew passes for Pampanga and Metro
Manila. This certification was to the effect that private
respondent Dionisio had a valid curfew pass. This certification
did not, however, specify any pass serial number or date or
period of effectivity of the supposed curfew pass. We find that
private respondent Dionisio was unable to prove possession of
a valid curfew pass during the night of the accident and that the
preponderance of evidence shows that he did not have such a
pass during that night. The relevance of possession or 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
We think that an automobile speeding down a street and
suddenly smashing into a stationary object in the dead of night
is a sufficiently startling event as to evoke spontaneous, rather
than reflective, reactions from observers who happened to be
around at that time. The testimony of Patrolman Cuyno was
therefore admissible as part of the res gestae and should have
been considered by the trial court. Clearly, substantial weight
should have been ascribed to such testimony, even though it did
not, as it could not, have purported to describe quantitatively
the precise velocity at winch Dionisio was travelling just before
impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off
his headlights, or whether his headlights accidentally
malfunctioned, just moments before the accident. The
Intermediate Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed the
intersection but was non-committal as to why they did so. It is
the petitioners' contention that Dionisio purposely shut off his
headlights even before he reached the intersection so as not to
be detected by the police in the police precinct which he (being
a resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is a more
credible explanation than that offered by private respondent
Dionisio — i.e., that he had his headlights on but that, at the
crucial moment, these had in some mysterious if convenient
way malfunctioned and gone off, although he succeeded in
switching his lights on again at "bright" split seconds before
contact with the dump truck.
A fourth and final issue relates to whether Dionisio was
intoxicated at the time of the accident. The evidence here
consisted of the testimony of Patrolman Cuyno to the effect that
private respondent Dionisio smelled of liquor at the time he
was taken from his smashed car and brought to the Makati
Medical Center in an unconscious condition.  7This testimony
has to be taken in conjunction with the admission of Dionisio
that he had taken "a shot or two" of liquor before dinner with
his boss that night. We do not believe that this evidence is
sufficient to show that Dionisio was so heavily under the
influence of liquor as to constitute his driving a motor vehicle
per se an act of reckless imprudence.   8   There simply is not
enough evidence to show how much liquor he had in fact taken
and the effects of that upon his physical faculties or upon his
judgment or mental alertness. We are also aware that "one shot
or two" of hard liquor may affect different people differently.
The conclusion we draw from the factual circumstances
outlined above is that private respondent Dionisio was
negligent the night of the accident. He was hurrying home that
night and driving faster than he should have been. Worse, he
extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus did not see
the dump truck that was parked askew and sticking out onto the
road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause
of the accident and of Dionisio's injuries was the wrongful —
or negligent manner in which the dump truck was parked in
other words, the negligence of petitioner Carbonel. That there
was a reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's
injuries on the other hand, is quite clear. Put in a slightly
different manner, the collision of Dionisio's car with the dump
truck was a natural and foreseeable consequence of the truck
driver's negligence.
The petitioners, however, urge that the truck driver's negligence
was merely a "passive and static condition" and that private
respondent Dionisio's negligence was an "efficient intervening
cause and that consequently Dionisio's negligence must be
regarded as the legal and proximate cause of the accident rather
than the earlier negligence of Carbonel. We note that the
petitioners' arguments are drawn from a reading of some of the
older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have any
validity for our jurisdiction. We note, firstly, that even in the
United States, the distinctions between "cause" and "condition"
which the 'petitioners would have us adopt have already been
"almost entirely discredited." Professors and Keeton make this
quite clear:
Cause and condition. Many courts have sought to distinguish
between the active "cause" of the harm and the existing
"conditions" upon which that cause operated. If the defendant
has created only a passive static condition which made the
damage possible, the defendant is said not to be liable. But so
far as the fact of causation is concerned, in the sense of
necessary antecedents which have played an important part in
producing the result it is quite impossible to distinguish
between active forces and passive situations, particularly since,
as is invariably the case, the latter are the result of other active
forces which have gone before.   The defendant who spills
gasoline about the premises creates a "condition," but the act
may be culpable because of the danger of fire. When a spark
ignites the gasoline, the condition has done quite as much to
bring about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not escape
responsibility.   Even the lapse of a considerable time during
which the "condition" remains static will not necessarily affect
liability; one who digs a trench in the highway may still be
liable to another who fans into it a month afterward. "Cause"
and "condition" still find occasional mention in the decisions;
but the distinction is now almost entirely discredited. So far as
it has any validity at all, it must refer to the type of case where
the forces set in operation by the defendant have come to rest in
a position of apparent safety, and some new force
intervenes.   But even in such cases, it is not the distinction
between "cause" and "condition" which is important but the
nature of the risk and the character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from
being a "passive and static condition" was rather an
indispensable and efficient cause. The collision between the
dump truck and the private respondent's car would in an
probability not have occurred had the dump truck not been
parked askew without any warning lights or reflector devices.
The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General
Lacuna Street and for having so created this risk, the truck
driver must be held responsible. In our view, Dionisio's
negligence, although later in point of time than the truck
driver's negligence and therefore closer to the accident, was not
an efficient intervening or independent cause. What the
Petitioners describe as an "intervening cause" was no more than
a foreseeable consequent manner which the truck driver had
parked the dump truck. In other words, the petitioner truck
driver owed a duty to private respondent Dionisio and others
similarly situated not to impose upon them the very risk the
truck driver had created. Dionisio's negligence was not of an
independent and overpowering nature as to cut, as it were, the
chain of causation in fact between the improper parking of the
dump truck and the accident, nor to sever the juris vinculum of
liability. It is helpful to quote once more from Professor and
Keeton:
Foreseeable Intervening Causes. If the intervening cause is one
which in ordinary human experience is reasonably to be
anticipated or one which the defendant has reason to anticipate
under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard
against it; or the defendant may be negligent only for that
reason. Thus one who sets a fire may be required to foresee that
an ordinary, usual and customary wind arising later wig spread
it beyond the defendant's own property, and therefore to take
precautions to prevent that event. The person who leaves the
combustible or explosive material exposed in a public place
may foresee the risk of fire from some independent source. ... In
all of these cases there is an intervening cause combining with
the defendant's conduct to produce the result and in each case
the defendant's negligence consists in failure to protect the
plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the
fact that the risk or a substantial and important part of the risk,
to which the defendant has subjected the plaintiff has indeed
come to pass. Foreseeable intervening forces are within the
scope original risk, and hence of the defendant's
negligence.   The courts are quite generally agreed that
intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.
Thus it has been held   that a defendant will be required to
anticipate the usual weather of the vicinity, including all
ordinary forces of nature such as usual wind or rain, or snow or
frost or fog or even lightning;   that one who leaves an
obstruction on the road or a railroad track should foresee that
a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention
of the foreseeable negligence of others. ... [The standard of
reasonable conduct may require the defendant to protect the
plaintiff against 'that occasional negligence which is one of the
ordinary incidents of human life, and therefore to be
anticipated.' Thus, a defendant who blocks the sidewalk and
forces the plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently
driven;   and one who parks an automobile on the highway
without lights at night is not relieved of responsibility when
another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was
"only contributory," that the "immediate and proximate cause"
of the injury remained the truck driver's "lack of due care" and
that consequently respondent Dionisio may recover damages
though such damages are subject to mitigation by the courts
(Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last
clear chance" doctrine. The theory here of petitioners is that
while the petitioner truck driver was negligent, private
respondent Dionisio had the "last clear chance" of avoiding the
accident and hence his injuries, and that Dionisio having failed
to take that "last clear chance" must bear his own injuries alone.
The last clear chance doctrine of the common law was imported
into our jurisdiction 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.
Petitioner Carbonel's proven negligence creates a presumption
of negligence on the part of his employer Phoenix   16in
supervising its employees properly and adequately. The
respondent appellate court in effect found, correctly in our
opinion, that Phoenix was not able to overcome this
presumption of negligence. The circumstance that Phoenix had
allowed its truck driver to bring the dump truck to his home
whenever there was work to be done early the following
morning, when coupled with the failure to show any effort on
the part of Phoenix to supervise the manner in which the dump
truck is parked when away from company premises, is an
affirmative showing of   culpa in vigilando   on the part of
Phoenix.
Turning to the award of damages and taking into account the
comparative negligence of private respondent Dionisio on one
hand and petitioners Carbonel and Phoenix upon the other
hand, 17 we believe that the demands of substantial justice are
satisfied by allocating most of the damages on a 20-80 ratio.
Thus, 20% of the damages awarded by the respondent appellate
court, except the award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs, shall be borne by
private respondent Dionisio; only the balance of 80% needs to
be paid by petitioners Carbonel and Phoenix who shall be
solidarity liable therefor to the former. The award of exemplary
damages and attorney's fees and costs shall be borne
exclusively by the petitioners. Phoenix is of course entitled to
reimbursement from Carbonel. 18 We see no sufficient reason
for disturbing the reduced award of damages made by the
respondent appellate court.
WHEREFORE, the decision of the respondent appellate court
is modified by reducing the aggregate amount of compensatory
damages, loss of expected income and moral damages private
respondent Dionisio is entitled to by 20% of such amount.
Costs against the petitioners. SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. 1719            January 23, 1907
M. H., RAKES, plaintiff-appellee, 

vs.

THE ATLANTIC, GULF AND PACIFIC
COMPANY, defendant-appellant.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of
eight negro laborers in the employment of the defendant, was at
work transporting iron rails from a barge in the harbor to the
company's yard near the malecon in Manila. Plaintiff claims
that but one hand car was used in this work. The defendant has
proved that there were two immediately following one another,
upon which were piled lengthwise seven rails, each weighing
560 pounds, so that the ends of the rails lay upon two
crosspieces or sills secured to the cars, but without side pieces
or guards to prevent them from slipping off. According to the
testimony of the plaintiff, the men were either in the rear of the
car or at its sides. According to that defendant, some of them
were also in front, hauling by a rope. At a certain spot at or near
the water's edge the track sagged, the tie broke, the car either
canted or upset, the rails slid off and caught the plaintiff,
breaking his leg, which was afterwards amputated at about the
knee.
This first point for the plaintiff to establish was that the accident
happened through the negligence of the defendant. The detailed
description by the defendant's witnesses of the construction and
quality of the track proves that if was up to the general stranded
of tramways of that character, the foundation consisting on land
of blocks or crosspieces of wood, by 8 inches thick and from 8
to 10 feet long laid, on the surface of the ground, upon which at
a right angle rested stringers of the same thickness, but from 24
to 30 feet in length. On the across the stringers the parallel with
the blocks were the ties to which the tracks were fastened. After
the road reached the water's edge, the blocks or crosspieces
were replaced with pilling, capped by timbers extending from
one side to the other. The tracks were each about 2 feet wide
and the two inside rails of the parallel tracks about 18 inches
apart. It was admitted that there were no side pieces or guards
on the car; that where no ends of the rails of the track met each
other and also where the stringers joined, there were no fish
plates. the defendant has not effectually overcome the plaintiff's
proof that the joints between the rails were immediately above
the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the
tie, which was the immediate occasion of the accident, is not
clear in the evidence, but is found by the trial court and is
admitted in the briefs and in the argument to have been the
dislodging of the crosspiece or piling under the stringer by the
water of the bay raised by a recent typhoon. The superintendent
of the company attributed it to the giving way of the block laid
in the sand. No effort was made to repair the injury at the time
of the occurrence. According to plaintiffs witnesses, a
depression of the track, varying from one half inch to one inch
and a half, was therafter apparent to the eye, and a fellow
workman of the plaintiff swears that the day before the accident
he called the attention of McKenna, the foreman, to it and
asked by simply straightening out the crosspiece, resetting the
block under the stringer and renewing the tie, but otherwise
leaving the very same timbers as before. It has not proven that
the company inspected the track after the typhoon or had any
proper system of inspection.
In order to charge the defendant with negligence, it was
necessary to show a breach of duty on its part in failing either
to properly secure the load on iron to vehicles transporting it, or
to skillfully build the tramway or to maintain it in proper
condition, or to vigilantly inspect and repair the roadway as
soon as the depression in it became visible. It is upon the failure
of the defendant to repair the weakened track, after notice of its
condition, that the judge below based his judgment.
This case presents many important matters for our decision, and
first among them is the standard of duty which we shall
establish in our jurisprudence on the part of employees toward
employees.
The lack or the harshness of legal rules on this subject has led
many countries to enact designed to put these relations on a fair
basis in the form of compensation or liability laws or the
institution of insurance. In the absence of special legislation we
find no difficulty in so applying the general principles of our
law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall
be governed by the provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if
done with malice would constitute a grave crime, shall be
punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without
committing any infraction of regulations, shall cause an injury
which, had malice intervened, would have constituted a crime
or misdemeanor.
And finally by articles 19 and 20, the liability of owners and
employers for the faults of their servants and representatives is
declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the
action, that the necessary conclusion from these collated laws is
that the remedy for injuries through negligence lies only in a
criminal action in which the official criminally responsible
must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff should
have procured the arrest of the representative of the company
accountable for not repairing the tract, and on his prosecution a
suitable fine should have been imposed, payable primarily by
him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes
upon this subject. Article 1093 of the Civil Code makes
obligations arising from faults or negligence not punished by
the law, subject to the provisions of Chapter 11 of Title XVI.
Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the
damage so done.
SEC. 1903. The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also
for those of the persons for whom they should be responsible.
The father, and on his death or incapacity, the mother, is liable
for the damages caused by the minors who live with them.
Owners or directors of an establishment or enterprise are
equally liable for the damages caused by their employees in the
service of the branches in which the latter may be employed or
in the performance of their duties.
The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damages.
As an answer to the argument urged in this particular action it
may be sufficient to point out that nowhere in our general
statutes is the employer penalized for failure to provide or
maintain safe appliances for his workmen. His obligation
therefore is one "not punished by the law " and falls under civil
rather than criminal jurisprudence. But the answer may be a
broader one. We should be reluctant, under any conditions, to
adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these
articles of effect, would shut out litigants their will from the
civil courts, would make the assertion of their rights dependent
upon the selection for prosecution of the proper criminal
offender, and render recovery doubtful by reason of the strict
rules of proof prevailing in criminal actions. Even if these
articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de
Enjuiciamiento Criminal), which, though n ever in actual force
in these Islands, was formerly given a suppletory or
explanatory effect. Under article 111 of this law, both classes of
action, civil and criminal, might be prosecuted jointly or
separately, but while the penal action was pending the civil was
suspended. According to article 112, the penal action once
started, the civil remedy should be sought therewith, unless it
had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil
action alone was prosecuted, arising out of a crime that could
be enforced by only on private complaint, the penal action
thereunder should be extinguished. These provisions are in
harmony with those of articles 23 and 133 of our Penal Code on
the same subject.
An examination of this topic might be carried much further, but
the citations of these articles suffices to show that the civil
liability was not intended to be merged in the criminal nor even
to be suspended thereby, except as expressly provided by law.
Where an individual is civilly liable for a negligent act or
omission, it is not required that the inured party should seek out
a third person criminally liable whose prosecution must be a
condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidiary in respect of criminal
actions against his employees only while they are process of
prosecution, or in so far as they determinate the existence of the
criminal act from which liability arises, and his obligation
under the civil law and its enforcement in the civil courts is not
barred thereby unless by election of the injured person.
Inasmuch as no criminal in question, the provisions of the Penal
Code can not affect this action. This construction renders it
unnecessary to finally determine here whether this subsidiary
civil liability in penal actions survived the laws that fully
regulated it or has been abrogated by the American civil and
criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited
in this case appears from the briefs before us to have arisen
from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the
comprehensive definition of offenses in articles 568 and 590 of
the Penal Code. It has been shown that the liability of an
employer arising out of his relation to his employee who is the
offender is not to be regarded as derived from negligence
punished by the law, within the meaning of articles 1092 and
1093. More than this, however, it can not be said to fall within
the class of acts unpunished by the law, the consequences of
which are regulated by articles 1902 and 1903 of the Civil
Code. The acts to which these articles are applicable are
understood to be those and growing out of preexisting duties of
the parties to one another. But were relations already formed
give rise to duties, whether springing from contract or quasi
contract, then breaches of those duties are subject to articles
1101, 1103, and 1104, of the same code. A typical application
of the distinction may be found in the consequences of a
railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the
contract of employment, that to the passengers out of the
contract for passage. while that to that injured bystander would
originate in the negligent act itself. This distinction is thus
clearly set forth by Manresa in his commentary on article 1093.
We are with reference to such obligations, that   culpa, or
negligence, may be understood in two difference senses; either
as culpa, substantive and independent, which on account of its
origin arises in an obligation between two persons not formerly
bound by any other obligation; or as an   incident   in the
performance of an obligation; or as already existed, which can
not be presumed to exist without the other, and which increases
the liability arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing
by itself, may be also considered as a real source of an
independent obligation, and, as chapter 2, title 16 of this book
of the code is devoted to it, it is logical to presume that the
reference contained in article 1093 is limited thereto and that it
does not extend to those provisions relating to the other species
of culpa (negligence), the nature of which we will discuss later.
(Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that
these two species of negligence may be somewhat inexactly
described as contractual and extra-contractual, the letter being
the culpa aquiliana of the Roman law and not entailing so strict
an obligation as the former. This terminology is unreservedly
accepted by Sanchez-Roman (Derecho Civil, fourth section,
Chapter XI, Article II, No. 12), and the principle stated is
supported be decisions of the supreme court of Spain, among
them those of November 20, 1896 (80 Jurisprudencia Civil, No.
151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The
contract is one for hire and not one of mandate. (March 10,
1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working
Men's Accident Law of January 30, 1900, throws uncertain
light on the relation between master and workman. Moved by
the quick industrial development of their people, the courts of
France early applied to the subject the principles common to
the law of both countries, which are lucidly discussed by the
leading French commentators.
The original French theory, resting the responsibility of owners
of industrial enterprises upon articles 1382, 1383, and 1384 of
the Code Napoleon, corresponding in scope to articles 1902 and
1903 of the Spanish Code, soon yielded to the principle that the
true basis is the contractual obligation of the employer and
employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted
in contracts for employment led to the discovery of a third basis
for liability in an article of he French Code making the
possessor of any object answerable for damage done by it while
in his charge. Our law having no counterpart of this article,
applicable to every kind of object, we need consider neither the
theory growing out of it nor that of "professional risk" more
recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, find a rule for this
case in the contractual obligation. This contractual obligation,
implied from the relation and perhaps so inherent in its nature
to be invariable by the parties, binds the employer to provide
safe appliances for the use of the employee, thus closely
corresponding to English and American Law. On these
principles it was the duty of the defendant to build and to
maintain its track in reasonably sound condition, so as to
protect its workingmen from unnecessary danger. It is plain that
in one respect or the other it failed in its duty, otherwise the
accident could not have occurred; consequently the negligence
of the defendant is established.
Another contention of the defense is that the injury resulted to
the plaintiff as a risk incident to his employment and, as such,
one assumed by him. It is evident that this can not be the case if
the occurrence was due to the failure to repair the track or to
duly inspect, it for the employee is not presumed to have
stipulated that the employer might neglect his legal duty. Nor
may it be excused upon the ground that the negligence leading
to the accident was that of a fellow-servant of the injured man.
It is not apparent to us that the intervention of a third person
can relieve the defendant from the performance of its duty nor
impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine,
known as "the fellow-servant, rule," we are not disposed to
introduce into our jurisprudence. Adopted in England by Lord
Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby,
1) in 1837, it has since been effectually abrogated by "the
Employers' Liability Acts" and the "Compensation Law." The
American States which applied it appear to be gradually getting
rid of it; for instance, the New York State legislature of 1906
did away with it in respect to railroad companies, and had in
hand a scheme for its total abolition. It has never found place in
the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title
Responsibilite, 630, and vol. 15, 1895, same title, 804. Also
more recent instances in Fuzier-Herman, Title Responsibilite
Civile, 710.)
The French Cour de Cassation clearly laid down the contrary
principle in its judgment of June 28, 1841, in the case of
Reygasse, and has since adhered to it.
The most controverted question in the case is that of the
negligence of the plaintiff, contributing to the accident, to what
extent it existed in fact and what legal effect is to be given it. In
two particulars is he charged with carelessness:
First. That having noticed the depression in the track he
continued his work; and
Second. That he walked on the ends of the ties at the side of the
car instead of along the boards, either before or behind it.
As to the first point, the depression in the track night indicate
either a serious or a rival difficulty. There is nothing in the
evidence to show that the plaintiff did or could see the
displaced timber underneath the sleeper. The claim that he must
have done so is a conclusion drawn from what is assumed to
have been a probable condition of things not before us, rather
than a fair inference from the testimony. While the method of
construction may have been known to the men who had helped
build the road, it was otherwise with the plaintiff who had
worked at this job less than two days. A man may easily walk
along a railway without perceiving a displacement of the
underlying timbers. The foreman testified that he knew the state
of the track on the day of the accident and that it was then in
good condition, and one Danridge, a witness for the defendant,
working on the same job, swore that he never noticed the
depression in the track and never saw any bad place in it. The
sagging of the track this plaintiff did perceive, but that was
reported in his hearing to the foreman who neither promised
nor refused to repair it. His lack of caution in continuing at his
work after noticing the slight depression of the rail was not of
so gross a nature as to constitute negligence, barring his
recovery under the severe American rule. On this point we
accept the conclusion of the trial judge who found as facts that
"the plaintiff did not know the cause of the one rail being lower
than then other" and "it does not appear in this case that the
plaintiff knew before the accident occurred that the stringers
and rails joined in the same place."
Were we not disposed to agree with these findings they would,
nevertheless, be binding upon us, because not "plainly and
manifestly against the weight of evidence," as those words of
section 497, paragraph 3 of the Code of Civil Procedure were
interpreted by the Supreme Court of the United States in the De
la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the
plaintiff, the judgment below is not so specific. While the judge
remarks that the evidence does not justify the finding that the
car was pulled by means of a rope attached to the front end or
to the rails upon it, and further that the circumstances in
evidence make it clear that the persons necessary to operate the
car could not walk upon the plank between the rails and that,
therefore, it was necessary for the employees moving it to get
hold upon it as best they could, there is no specific finding upon
the instruction given by the defendant to its employees to walk
only upon the planks, nor upon the necessity of the plaintiff
putting himself upon the ties at the side in order to get hold
upon the car. Therefore the findings of the judge below leave
the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to
our inquiry.
While the plaintiff and his witnesses swear that not only were
they not forbidden to proceed in this way, but were expressly
directed by the foreman to do so, both the officers of the
company and three of the workmen testify that there was a
general prohibition frequently made known to all the gang
against walking by the side of the car, and the foreman swears
that he repeated the prohibition before the starting of this
particular load. On this contradiction of proof we think that the
preponderance is in favor of the defendant's contention to the
extent of the general order being made known to the workmen.
If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate,
although not as its primary cause. This conclusion presents
sharply the question, What effect is to be given such an act of
contributory negligence? Does it defeat a recovery, according to
the American rule, or is it to be taken only in reduction of
damages?
While a few of the American States have adopted to a greater or
less extent the doctrine of comparative negligence, allowing a
recovery by a plaintiff whose own act contributed to his injury,
provided his negligence was slight as compared with that of the
defendant, and some others have accepted the theory of
proportional damages, reducing the award to a plaintiff in
proportion to his responsibility for the accident, yet the
overwhelming weight of adjudication establishes the principle
in American jurisprudence that any negligence, however slight,
on the part of the person injured which is one of the causes
proximately contributing to his injury, bars his recovery.
(English and American Encyclopedia of law, Titles
"Comparative Negligence" and Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at
page 429) the Supreme Court of the United States thus
authoritatively states the present rule of law:
Although the defendant's' negligence may have been the
primary cause of the injury complained of, yet an action for
such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of
ordinary care and caution in the person injured; subject to this
qualification, which has grown up in recent years (having been
first enunciated in Davies vs. Mann, 10 M. & W., 546) that the
contributory negligence of the party injured will not defeat the
action if it be shown that the defendant might, by the exercise
of reasonable care and prudence, have avoided the
consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the
defendant was exonerated, but when analyzed they prove to
have been decided either upon the point that he was not
negligent or that the negligence of the plaintiff was the
immediate cause of the casualty or that the accident was due
to casus fortuitus. Of the first class in the decision of January
26, 1887 (38   Jurisprudencia Criminal, No. 70), in which a
railway employee, standing on a car, was thrown therefrom and
killed by the shock following the backing up of the engine. It
was held that the management of the train and engine being in
conformity with proper rules of the company, showed no fault
on its part.
Of the second class are the decision of the 15th of January, the
19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year; and of the third class the decision
of the 4th of June, 1888 (64 Jurisprudencia Civil, No. 1), in
which the breaking down of plaintiff's dam by the logs of the
defendant impelled against it by the Tajo River, was held due to
a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has
been laid, rested on two bases, one, that the defendant was not
negligent, because expressly relieved by royal order from the
common obligation imposed by the police law of maintaining a
guard at the road crossing; the other, because the act of the
deceased in driving over level ground with unobstructed view
in front of a train running at speed, with the engine whistle
blowing was the determining cause of the accident. It is plain
that the train was doing nothing but what it had a right to do
and that the only fault lay with the injured man. His negligence
was not contributory, it was sole, and was of such an efficient
nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it
seems plain that the plaintiff sustaining damages was not free
from contributory negligence; for instance, the decision of the
14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in
which the owner of a building was held liable for not furnishing
protection to workmen engaged in hanging out flags, when the
latter must have perceived beforehand the danger attending the
work.
None of those cases define the effect to be given the negligence
of a plaintiff which contributed to his injury as one of its
causes, though not the principal one, and we are left to seek the
theory of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de
cassation held that the carelessness of the victim did not civilly
relieve the person without whose fault the accident could not
have happened, but that the contributory negligence of the
injured man had the effect only of reducing the damages. The
same principle was applied in the case of Recullet, November
10, 1888. and that of Laugier of the 11th of November, 1896.
(Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like
tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363,
364, and vol. 15, 1895, Title Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the
most part the French Civil Law, now embodied in a code
following the Code Napoleon, a practice in accord with that of
France is laid down in many cases collected in the annotations
to article 1053 of the code edited by Beauchamps, 1904. One of
these is Luttrell   vs.   Trottier, reported in   La Revue de
Jurisprudence, volume 6, page 90, in which the court of Kings
bench, otherwise known as the court of appeals, the highest
authority in the Dominion of Canada on points of French law,
held that contributory negligence did not exonerate the
defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other
similar cases in the provincial courts have been overruled by
appellate tribunals made up of common law judges drawn from
other provinces, who have preferred to impose uniformally
throughout the Dominion the English theory of contributory
negligence. Such decisions throw no light upon the doctrines of
the civil law. Elsewhere we find this practice embodied in
legislation; for instance, section 2 of article 2398 of the Code of
Portugal reads as follows:
If in the case of damage there was fault or negligence on the
part of the person injured or in the part of some one else, the
indemnification shall be reduced in the first case, and in the
second case it shall be appropriated in proportion to such fault
or negligence as provided in paragraphs 1 and 2 of section
2372.
And in article 1304 of the Austrian Code provides that the
victim who is partly changeable with the accident shall stand
his damages in proportion to his fault, but when that proportion
is incapable of ascertainment, he shall share the liability equally
with the person principally responsible. The principle of
proportional damages appears to be also adopted in article 51 of
the Swiss Code. Even in the United States in admirality
jurisdictions, whose principles are derived from the civil law,
common fault in cases of collision have been disposed of not on
the ground of contradictor negligence, but on that of equal loss,
the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally
divided, a decree is entered in favor of the vessel sustaining the
greater loss against the other for the excess of her damages over
one-half of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other
jurisdictions. The Spanish Code of Commerce, article 827,
makes each vessel for its own damage when both are the fault;
this provision restricted to a single class of the maritime
accidents, falls for short of a recognition of the principle of
contributory negligence as understood in American Law, with
which, indeed, it has little in common. This is a plain from
other articles of the same code; for instance, article 829,
referring to articles 826, 827, and 828, which provides: "In the
cases above mentioned the civil action of the owner against the
person liable for the damage is reserved, as well as the criminal
liability which may appear."
The rule of the common law, a hard and fast one, not adjustable
with respects of the faults of the parties, appears to have grown
out the original method of trial by jury, which rendered difficult
a nice balancing of responsibilities and which demanded an
inflexible standard as a safeguard against too ready symphaty
for the injured. It was assumed that an exact measure of several
concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence,
neither party can maintain an action against the other, is, not the
wrong of the one is set off against the wrong of the other; it that
the law can not measure how much of the damage suffered is
attributable to the plaintiff's own fault. If he were allowed to
recover, it might be that he would obtain from the other party
compensation for hiss own misconduct. (Heil vs. Glanding, 42
Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no
appointment of damages. The law has no scales to determine in
such cases whose wrongdoing weighed most in the compound
that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St.
565, 469.)
Experience with jury trials in negligence cases has brought
American courts to review to relax the vigor of the rule by
freely exercising the power of setting aside verdicts deemed
excessive, through the device of granting new trials, unless
reduced damages are stipulated for, amounting to a partial
revision of damages by the courts. It appears to us that the
control by the court of the subject matter may be secured on a
moral logical basis and its judgment adjusted with greater
nicety to the merits of the litigants through the practice of
offsetting their respective responsibilities. In the civil law
system the desirable end is not deemed beyond the capacity of
its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain
or in other countries under the stress and counter stress of novel
schemers of legislation, we find the theory of damages laid
down in the judgment the most consistent with the history and
the principals of our law in these Islands and with its logical
development.
Difficulty seems to be apprehended in deciding which acts of
the injured party shall be considered immediate causes of the
accident. The test is simple. Distinction must be between the
accident and the injury, between the event itself, without which
there could have been no accident, and those acts of the victim
not entering into it, independent of it, but contributing under
review was the displacement of the crosspiece or the failure to
replace it. this produced the event giving occasion for damages
— that is, the shinking of the track and the sliding of the iron
rails. To this event, the act of the plaintiff in walking by the side
of the car did not contribute, although it was an element of the
damage which came to himself. Had the crosspiece been out of
place wholly or partly thorough his act of omission of duty, the
last would have been one of the determining causes of the event
or accident, for which he would have been responsible. Where
he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction
with the occurrence, he contributes only to his own injury, he
may recover the amount that the defendant responsible for the
event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the
trial court, fixing the damage incurred by the plaintiff at 5,000
pesos, the equivalent of 2,500 dollars, United States money, we
deduct therefrom 2,500 pesos, the amount fairly attributable to
his negligence, and direct judgment to be entered in favor of the
plaintiff for the resulting sum of 2,500 pesos, with cost of both
instances, and ten days hereafter let the case be remanded to the
court below for proper action. So ordered.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. Nos. L-10308 and L-10385-8             April 30, 1957
MARIA PAZ S. ALBA, ETC., ET AL., petitioners, 

vs.

RACIO BULAONG, ET AL., ETC., respondents.
BENGZON, J.:
This is a petition to reverse the decision of the Commissioner of
the Workmen's Compensation Commission in five cases
denying the claims for compensation, against Dr. Horacio
Bulaong, of herein petitioners, who were his employees and
dependents of his employees.
On March 12, 1955, petitioners Gregorio de la Cruz, Pedro C.
Bulaong and Pacifico Bulaong were employees of Dr. Horacio
Bulaong in his business of threshing palay. Other employees
were Engracio Alba (husband of petitioner Maria Paz S. Alba)
and Vicente A. Sebastian (husband of petitioner Elisea S.
Sebastian). Early in the morning of that day said five employees
were, upon specific orders of Dr. Bulaong, on their way to
Barrio Baringan, Malolos, Bulacan, to thresh palay, riding on a
tractor which was pulling a threshing machine. Suddenly a
speeding bus of the Victory Liner Inc. collided with the thresher
which in turn hit the tractor, and as a result those on board were
violently thrown out. Engracio Alba and Vicente Sebastian
died; Gregorio de la Cruz, Pedro C. Bulaong and Pacifica
Bulaong sustained physical injuries.
WHEREFORE, five separate claims were filed before the
Workmen's Compensation Commission against the employer
Dr. Bulaong. Three defenses were set up by him: (a) claimants
were not his employees, but industrial partners, (b) the injuries
were not sustained in the course of employment and (c) the
claims, if any, had been extinguished by virtue of the monetary
settlements which petitioners had concluded with the Victory
Liner Inc.
The referee overruled the defenses, having found the five men
to be employees who had died or were injured in the course of
employment. Consequently he required the employer to make
compensation in the amounts specified in his award. However
on appeal, the Workmen's Compensation Commissioner
absolved Dr. Bulaong from all liability, because he found that
the claimants had received, after the mishap, various amounts
of money from the owner of the colliding bus, the Victory Liner
Inc., each of them having executed a written release or waiver
in favor of said Liner, the pertinent part of which reads as
follows:
And I likewise freely and completely cede and transfer into said
Company (Victory Liner Inc.) any right given to me by law
against any person or company that should be liable for the said
accident except my right to claim against Dr. Horacio Bulaong
in accordance with and under the Workmen's Compensation Act
(Rep. Act 772).
Claimants, the Commissioner declared, had elected to hold the
Liner responsible for the accident, and could not thereafter turn
around to recover their employer. He cited section 6 of the
Workmen's Compensation Law, which for convenience is
quoted:
SEC. 6.   Liability of third parties. — In case an employee
suffers an injury for which compensation is due under this Act
by any other person besides his employer, it shall be optional
with such injured employee either to claim compensation from
his employer, under this Act, or sue such other person for
damages in accordance with law; and in case compensation is
claimed and allowed in accordance with this Act, the employer
who paid such compensation or was found liable to pay the
same, shall succeed the injured employee to the right of
recovering from such person what he paid: Provided, That in
case the employer recovers from such third person damages in
excess of those paid or allowed under this Act, such excess
shall be delivered to the injured employee or any other person
entitled thereto, after deduction of at the expenses of the
employer and the costs of the proceedings .The sum paid by the
employer for compensation to which the employee or his
dependents are entitled of this Act, shall not be admissible as
evidence in any damage suit or action. (As amended.)
Naturally the argument before this Court dwelt mostly on the
interpretation of the above section and its application to the
circumstances of record. There was no election, petitioners
contend, to recover from the Liner   to the exclusion   of Dr.
Bulaong, because the document itself signed by petitioners
reserved their right to claim against Dr. Horacio Bulaong under
the Workmen's Compensation Act.
Such reservation, counter the respondents, besides being void
and against the law, cannot bind Dr. Bulaong who was not a
party to the instrument.
There is no question that the Liner was a "third party" within
the meaning of section 6. There is also no question that
petitioner have not sued the Liner for damages. Wherefore they
are not deemed to have made the election specified in section 6.
However, the plain intent of the law is that they shall not
receive payment twice for the same injuries (from the third
party and from the employer). Hence if   without suing   they
receive full damages from the third party, they should be
deemed to have practically made the election under the law, and
should be prevented from thereafter suing the employer. Full
damages means, of course what they would have demanded in a
suit against the third party or what they would receive in a
compensation as complete settlement. Needless to say, where
the injured employee is offered, by the third party,
compensation which he deems insufficient, he may reject it and
thereafter litigate with such third party. Or choose instead to
complain against his employer.
Nevertheless there is nothing in the law to prevent him from
accepting such insufficient compensation but   expressly
reserving at the same time   his right to recover additional
damages from his employer. If the third party agrees to the
reservation, such partial payment may legally be made and
accepted. We say "if", because the reservation necessarily
entails some disadvantage to the third party, inasmuch as
pursuant to legal principles when the employer subsequently
pays, he may in turn recover from the third party (See sec. 6).
The employer can not validly object to such reservation by the
employee, because in effect the settlement helps to reduce the
amount he will afterwards have to disgorge.
As we see it, the five employees' acceptance of the Victory
Liner's offer of compensation, under the circumstances
disclosed by this record, especially the written
acknowledgments, showed they were not content with the
amount received — they did not consider it sufficient — so
they reserved their right to require additional compensation
from their employer. Hence their action against Dr. Bulaong is
not barred by section 6. He may in turn demand reimbursement
from Victory Liner Inc.
The implied reservation of Dr. Bulaong's right against Victory
Liner Inc. is not unprecedented in the roam of jurisprudence.
When a promissory note is dishonored for non-payment, the
holder may recover its value either from the maker or from the
indorser. If he sues the indorser and recovers, the latter may in
turn recoup from the maker. The statute expressly permits him
to renounce his right against the maker and reserve his right to accordance with law. Bearing in mind, however, the law's
recover from the indorser (Sec. 120 (e) Negotiable Instruments intention not to give double compensation, the amounts they
Law). When that happens, the courts say the indorser's right to have received from the Victory Liner shall be deducted from
recover from the maker is also reserved. (Bootman's Sav. vs. the sums so determined.
Johnson, 24 Mo. App. 317; Tolentino Commercial Laws Vol. I
(7th Ed.)p. 361.1) In this connection we notice that the referee who has
investigated the matter has made some calculations of monetary
In the situation resulting after the collision, we could regard the award. However they were not passed upon by the
five employees, the Victory Liner and Dr. Bulaong in the same Commissioner.
juridical position, respectively, of holder, maker and indorser.
The release with express reservation produced Wherefore, for the purpose of ascertaining and awarding such
the implied reservation already stated. compensation to petitioners, the record will be remanded to the
Workmen's Compensation Commission for further action in
What then, it may be asked, was the advantage accruing to the accordance with this opinion. No costs. So ordered.
Liner from the settlement it had worked to accomplish? For one
thing its driver would not be prosecuted by petitioners; besides
earning such driver's gratitude, the Liner thereby avoided losses
in time and services. For another, even if it be liable to the
employer for whatever the latter might have to satisfy, the Liner
could expect the settlement between employer and employees
to be reasonable considering their relationship, more reasonable
perhaps than a settlement between itself and the injured
employees.

It is therefore our view that the moneys received from Victory

Liner Inc. did not necessarily have the effect of releasing Dr.
Bulaong. Inasmuch as the five men were his employees, and
they were injured by reason of and in the course of their
employment, he must pay compensation to be fixed in
 Republic of the Philippines
 seat," a wooden stool at the back of the door at the rear end of
SUPREME COURT
 the vehicle.
Manila
On the way to Poblacion Sibulan, Negros Occidental, the
SECOND DIVISION jeepney stopped to let a passenger off. As she was seated at the
rear of the vehicle, Sunga gave way to the outgoing passenger.
G.R. No. 122039 May 31, 2000 Just as she was doing so, an Isuzu truck driven by Iglecerio
Verena and owned by Francisco Salva bumped the left rear
VICENTE CALALAS, petitioner,
 portion of the jeepney. As a result, Sunga was injured. She
vs.
 sustained a fracture of the "distal third of the left tibia-fibula
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and with severe necrosis of the underlying skin." Closed reduction
FRANCISCO SALVA, respondents. of the fracture, long leg circular casting, and case wedging were
done under sedation. Her confinement in the hospital lasted
MENDOZA, J.: from August 23 to September 7, 1989. Her attending physician,
Dr. Danilo V. Oligario, an orthopedic surgeon, certified she
This is a petition for review on certiorari of the decision1 of the
would remain on a cast for a period of three months and would
Court of Appeals, dated March 31, 1991, reversing the contrary
have to ambulate in crutches during said period.
decision of the Regional Trial Court, Branch 36, Dumaguete
City, and awarding damages instead to private respondent Eliza On October 9, 1989, Sunga filed a complaint for damages
Jujeurche Sunga as plaintiff in an action for breach of contract against Calalas, alleging violation of the contract of carriage by
of carriage. the former in failing to exercise the diligence required of him as
a common carrier. Calalas, on the other hand, filed a third-party
The facts, as found by the Court of Appeals, are as follows:
complaint against Francisco Salva, the owner of the Isuzu
truck.
At 10 o'clock in the morning of August 23, 1989, private
respondent Eliza Jujeurche G. Sunga, then a college freshman
The lower court rendered judgment against Salva as third-party
majoring in Physical Education at the Siliman University, took
defendant and absolved Calalas of liability, holding that it was
a passenger jeepney owned and operated by petitioner Vicente
the driver of the Isuzu truck who was responsible for the
Calalas. As the jeepney was filled to capacity of about 24
accident. It took cognizance of another case (Civil Case No.
passengers, Sunga was given by the conductor an "extension
3490), filed by Calalas against Salva and Verena, for quasi-
delict, in which Branch 37 of the same court held Salva and his
driver Verena jointly liable to Calalas for the damage to his
jeepney.
On appeal to the Court of Appeals, the ruling of the lower court
was reversed on the ground that Sunga's cause of action was
based on a contract of carriage, not quasi-delict, and that the
common carrier failed to exercise the diligence required under
the Civil Code. The appellate court dismissed the third-party
complaint against Salva and adjudged Calalas liable for
damages to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby
REVERSED and SET ASIDE, and another one is entered
ordering defendant-appellee Vicente Calalas to pay plaintiff-
appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil
Case No. 3490 that the negligence of Verena was the proximate
cause of the accident negates his liability and that to rule
otherwise would be to make the common carrier an insurer of
the safety of its passengers. He contends that the bumping of
the jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages to Sunga
on the ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case
No. 3490 finding the driver and the owner of the truck liable for
quasi-delict ignores the fact that she was never a party to that
case and, therefore, the principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present
case the same. The issue in Civil Case No. 3490 was whether
Salva and his driver Verena were liable for quasi-delict for the
damage caused to petitioner's jeepney. On the other hand, the
issue in this case is whether petitioner is liable on his contract
of carriage. The   first, quasi-delict, also known as   culpa
aquiliana or culpa extra contractual, has as its source the
negligence of the tortfeasor. The   second, breach of contract
or culpa contractual, is premised upon the negligence in the
performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be
clearly established because it is the basis of the action, whereas
in breach of contract, the action can be prosecuted merely by
proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his
passenger safely to his destination.2 In case of death or injuries
to passengers, Art. 1756 of the Civil Code provides that
common carriers are presumed to have been at fault or to have
acted negligently unless they prove that they observed
extraordinary diligence as defined in Arts. 1733 and 1755 of the
Code. This provision necessarily shifts to the common carrier
the burden of proof.
There is, thus, no basis for the contention that the ruling in
Civil Case No. 3490, finding Salva and his driver Verena liable
for the damage to petitioner's jeepney, should be binding on
Sunga. It is immaterial that the proximate cause of the collision
between the jeepney and the truck was the negligence of the
truck driver. The doctrine of proximate cause is applicable only
in actions for quasi-delict, not in actions involving breach of
contract. The doctrine is a device for imputing liability to a
person where there is no relation between him and another
party. In such a case, the obligation is created by law itself. But,
where there is a pre-existing contractual relation between the
parties, it is the parties themselves who create the obligation,
and the function of the law is merely to regulate the relation
thus created. Insofar as contracts of carriage are concerned,
some aspects regulated by the Civil Code are those respecting
the diligence required of common carriers with regard to the
safety of passengers as well as the presumption of negligence in
cases of death or injury to passengers. It provides:
Art. 1733. Common carriers, from the nature of their business
and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to
all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1746, Nos. 5, 6,
and 7, while the extraordinary diligence for the safety of the
passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with due regard for
all the circumstances.
Art. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they observed
extraordinary diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the
presumption of negligence at once arose, and it became the
duty of petitioner to prove that he had to observe extraordinary
diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as
human care and foresight could provide, using the utmost
diligence of very cautious persons, with due regard for all the
circumstances" as required by Art. 1755? We do not think so.
Several factors militate against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not
properly parked, its rear portion being exposed about two
meters from the broad shoulders of the highway, and facing the
middle of the highway in a diagonal angle. This is a violation of
the R.A. No. 4136, as amended, or the Land Transportation and
Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. — No person shall drive his
motor vehicle in such a manner as to obstruct or impede the
passage of any vehicle, nor, while discharging or taking on
passengers or loading or unloading freight, obstruct the free
passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more
passengers than the allowed seating capacity of the jeepney, a
violation of §32(a) of the same law. It provides:
Exceeding registered capacity. — No person operating any
motor vehicle shall allow more passengers or more freight or
cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed
her in a peril greater than that to which the other passengers
were exposed. Therefore, not only was petitioner unable to
overcome the presumption of negligence imposed on him for
the injury sustained by Sunga, but also, the evidence shows he
was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention
that Sunga's taking an "extension seat" amounted to an implied
assumption of risk. It is akin to arguing that the injuries to the
many victims of the tragedies in our seas should not be
compensated merely because those passengers assumed a
greater risk of drowning by boarding an overloaded ferry. This
is also true of petitioner's contention that the jeepney being
bumped while it was improperly parked constitutes   caso
fortuito. A   caso fortuito   is an event which could not be
foreseen, or which, though foreseen, was inevitable.3   This
requires that the following requirements be present: (a) the
cause of the breach is independent of the debtor's will; (b) the
event is unforeseeable or unavoidable; (c) the event is such as
to render it impossible for the debtor to fulfill his obligation in a
normal manner, and (d) the debtor did not take part in causing
the injury to the

creditor.4 Petitioner should have foreseen the danger of parking
his jeepney with its body protruding two meters into the
highway.
Finally, petitioner challenges the award of moral damages
alleging that it is excessive and without basis in law. We find
this contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year
college student in that school year 1989-1990 at the Silliman
University, majoring in Physical Education. Because of the
injury, she was not able to enroll in the second semester of that
school year. She testified that she had no more intention of
continuing with her schooling, because she could not walk and
decided not to pursue her degree, major in Physical Education
"because of my leg which has a defect already."
Plaintiff-appellant likewise testified that even while she was
under confinement, she cried in pain because of her injured left
foot. As a result of her injury, the Orthopedic Surgeon also
certified that she has "residual bowing of the fracture side." She
likewise decided not to further pursue Physical Education as
her major subject, because "my left leg . . . has a defect
already."
Those are her physical pains and moral sufferings, the
inevitable bedfellows of the injuries that she suffered. Under
Article 2219 of the Civil Code, she is entitled to recover moral
damages in the sum of P50,000.00, which is fair, just and
reasonable.
In this case, there is no legal basis for awarding moral damages
since there was no factual finding by the appellate court that
petitioner acted in bad faith in the performance of the contract
of carriage. Sunga's contention that petitioner's admission in
open court that the driver of the jeepney failed to assist her in
going to a nearby hospital cannot be construed as an admission
of bad faith. The fact that it was the driver of the Isuzu truck
who took her to the hospital does not imply that petitioner was
utterly indifferent to the plight of his injured passenger. If at all,
it is merely implied recognition by Verena that he was the one
at fault for the accident.
WHEREFORE, the decision of the Court of Appeals, dated
March 31, 1995, and its resolution, dated September 11, 1995,
are AFFIRMED, with the MODIFICATION that the award of
moral damages is DELETED.
SO ORDERED.

As a general rule, moral damages are not recoverable in actions

for damages predicated on a breach of contract for it is not one
of the items enumerated under Art. 2219 of the Civil Code.5 As
an exception, such damages are recoverable: (1) in cases in
which the mishap results in the death of a passenger, as
provided in Art. 1764, in relation to Art. 2206(3) of the Civil
Code; and (2) in the cases in which the carrier is guilty of fraud
or bad faith, as provided in Art. 2220.6
 Republic of the Philippines
 G.R. CV No. 25017, entitled "Ford Philippines, Inc. vs.
SUPREME COURT
 Citibank, N.A. and Insular Bank of Asia and America (now
Manila Philipppine Commercial International Bank), and the August 8,
1995 Resolution,2   ordering the collecting bank, Philippine
SECOND DIVISION Commercial International Bank, to pay the amount of Citibank
Check No. SN-04867.
G.R. No. 121413        January 29, 2001
In G.R. No. 128604, petitioner Ford Philippines assails the
PHILIPPINE COMMERCIAL INTERNATIONAL BANK October 15, 1996 Decision3   of the Court of Appeals and its
(formerly INSULAR BANK OF ASIA AND March 5, 1997 Resolution4   in CA-G.R. No. 28430 entitled
AMERICA),petitioner, 
 "Ford Philippines, Inc. vs. Citibank, N.A. and Philippine
vs.
 Commercial International Bank," affirming in toto the judgment
COURT OF APPEALS and FORD PHILIPPINES, INC. of the trial court holding the defendant drawee bank, Citibank,
and CITIBANK, N.A., respondents. N.A., solely liable to pay the amount of P12,163,298.10 as
damages for the misapplied proceeds of the plaintiff's Citibanl
QUISUMBING, J.: Check Numbers SN-10597 and 16508.

These consolidated petitions involve several fraudulently
negotiated checks.
The original actions a quo were instituted by Ford Philippines
to recover from the drawee bank, CITIBANK, N.A. (Citibank)
and collecting bank, Philippine Commercial International Bank
(PCIBank) [formerly Insular Bank of Asia and America], the
value of several checks payable to the Commissioner of
Internal Revenue, which were embezzled allegedly by an
organized syndicate.1âwphi1.nêt
I. G.R. Nos. 121413 and 121479
The stipulated facts submitted by the parties as accepted by the
Court of Appeals are as follows:
"On October 19, 1977, the plaintiff Ford drew and issued its
Citibank Check No. SN-04867 in the amount of P4,746,114.41,
in favor of the Commissioner of Internal Revenue as payment
of plaintiff;s percentage or manufacturer's sales taxes for the
third quarter of 1977.

G.R. Nos. 121413 and 121479 are twin petitions for review of The aforesaid check was deposited with the degendant IBAA
the March 27, 1995 Decision1  of the Court of Appeals in CA- (now PCIBank) and was subsequently cleared at the Central
Bank. Upon presentment with the defendant Citibank, the
proceeds of the check was paid to IBAA as collecting or
depository bank.
The proceeds of the same Citibank check of the plaintiff was
never paid to or received by the payee thereof, the
Commissioner of Internal Revenue.
As a consequence, upon demand of the Bureau and/or
Commissioner of Internal Revenue, the plaintiff was compelled
to make a second payment to the Bureau of Internal Revenue of
its percentage/manufacturers' sales taxes for the third quarter of
1977 and that said second payment of plaintiff in the amount of
P4,746,114.41 was duly received by the Bureau of Internal
Revenue.
It is further admitted by defendant Citibank that during the time
of the transactions in question, plaintiff had been maintaining a
checking account with defendant Citibank; that Citibank Check
No. SN-04867 which was drawn and issued by the plaintiff in
favor of the Commissioner of Internal Revenue was a crossed
check in that, on its face were two parallel lines and written in
between said lines was the phrase "Payee's Account Only"; and
that defendant Citibank paid the full face value of the check in
the amount of P4,746,114.41 to the defendant IBAA.
It has been duly established that for the payment of plaintiff's
percentage tax for the last quarter of 1977, the Bureau of
Internal Revenue issued Revenue Tax Receipt No. 18747002,
dated October 20, 1977, designating therein in Muntinlupa,
Metro Manila, as the authorized agent bank of Metrobanl,
Alabang branch to receive the tax payment of the plaintiff.
On December 19, 1977, plaintiff's Citibank Check No.
SN-04867, together with the Revenue Tax Receipt No.
18747002, was deposited with defendant IBAA, through its
Ermita Branch. The latter accepted the check and sent it to the
Central Clearing House for clearing on the samd day, with the
indorsement at the back "all prior indorsements and/or lack of
indorsements guaranteed." Thereafter, defendant IBAA
presented the check for payment to defendant Citibank on same
date, December 19, 1977, and the latter paid the face value of
the check in the amount of P4,746,114.41. Consequently, the
amount of P4,746,114.41 was debited in plaintiff's account with
the defendant Citibank and the check was returned to the
plaintiff.
Upon verification, plaintiff discovered that its Citibank Check
No. SN-04867 in the amount of P4,746,114.41 was not paid to
the Commissioner of Internal Revenue. Hence, in separate
letters dated October 26, 1979, addressed to the defendants, the
plaintiff notified the latter that in case it will be re-assessed by
the BIR for the payment of the taxes covered by the said
checks, then plaintiff shall hold the defendants liable for
reimbursement of the face value of the same. Both defendants
denied liability and refused to pay.
In a letter dated February 28, 1980 by the Acting Commissioner
of Internal Revenue addressed to the plaintiff - supposed to be
Exhibit "D", the latter was officially informed, among others,
that its check in the amount of P4, 746,114.41 was not paid to
the government or its authorized agent and instead encashed by
unauthorized persons, hence, plaintiff has to pay the said
amount within fifteen days from receipt of the letter. Upon
advice of the plaintiff's lawyers, plaintiff on March 11, 1982,
paid to the Bureau of Internal Revenue, the amount of
P4,746,114.41, representing payment of plaintiff's percentage
tax for the third quarter of 1977.
As a consequence of defendant's refusal to reimburse plaintiff
of the payment it had made for the second time to the BIR of its
percentage taxes, plaintiff filed on January 20, 1983 its original
complaint before this Court.
On December 24, 1985, defendant IBAA was merged with the
Philippine Commercial International Bank (PCI Bank) with the
latter as the surviving entity.
Defendant Citibank maintains that; the payment it made of
plaintiff's Citibank Check No. SN-04867 in the amount of
P4,746,114.41 "was in due course"; it merely relied on the
clearing stamp of the depository/collecting bank, the defendant
IBAA that "all prior indorsements and/or lack of indorsements
guaranteed"; and the proximate cause of plaintiff's injury is the
gross negligence of defendant IBAA in indorsing the plaintiff's
Citibank check in question.
It is admitted that on December 19, 1977 when the proceeds of
plaintiff's Citibank Check No. SN-048867 was paid to
defendant IBAA as collecting bank, plaintiff was maintaining a
checking account with defendant Citibank."5
Although it was not among the stipulated facts, an investigation
by the National Bureau of Investigation (NBI) revealed that
Citibank Check No. SN-04867 was recalled by Godofredo
Rivera, the General Ledger Accountant of Ford. He purportedly
needed to hold back the check because there was an error in the
computation of the tax due to the Bureau of Internal Revenue
(BIR). With Rivera's instruction, PCIBank replaced the check
with two of its own Manager's Checks (MCs). Alleged
members of a syndicate later deposited the two MCs with the
Pacific Banking Corporation.
Ford, with leave of court, filed a third-party complaint before
the trial court impleading Pacific Banking Corporation (PBC)
and Godofredo Rivera, as third party defendants. But the court
dismissed the complaint against PBC for lack of cause of
action. The course likewise dismissed the third-party complaint
against Godofredo Rivera because he could not be served with
summons as the NBI declared him as a "fugitive from justice".
On June 15, 1989, the trial court rendered its decision, as
follows:
"Premises considered, judgment is hereby rendered as follows:
"1. Ordering the defendants Citibank and IBAA (now PCI
Bank), jointly and severally, to pay the plaintiff the amount of
P4,746,114.41 representing the face value of plaintiff's Citibank
Check No. SN-04867, with interest thereon at the legal rate
starting January 20, 1983, the date when the original complaint
was filed until the amount is fully paid, plus costs;
"2. On defendant Citibank's cross-claim: ordering the cross-
defendant IBAA (now PCI Bank) to reimburse defendant
Citibank for whatever amount the latter has paid or may pay to
the plaintiff in accordance with next preceding paragraph;
"3. The counterclaims asserted by the defendants against the
plaintiff, as well as that asserted by the cross-defendant against
the cross-claimant are dismissed, for lack of merits; and
"4. With costs against the defendants.
SO ORDERED."6
Not satisfied with the said decision, both defendants, Citibank
and PCIBank, elevated their respective petitions for review on
certiorari to the Courts of Appeals. On March 27, 1995, the
appellate court issued its judgment as follows:
"WHEREFORE, in view of the foregoing, the court AFFIRMS
the appealed decision with modifications.
The court hereby renderes judgment:
1. Dismissing the complaint in Civil Case No. 49287 insofar as
defendant Citibank N.A. is concerned;
2.   Ordering   the defendant IBAA now PCI Bank to pay the
plaintiff the amount of P4,746,114.41 representing the face
value of plaintiff's Citibank Check No. SN-04867, with interest
thereon at the legal rate starting January 20, 1983, the date
when the original complaint was filed until the amount is fully
paid;
3. Dismissing the counterclaims asserted by the defendants
against the plaintiff as well as that asserted by the cross-
defendant against the cross-claimant, for lack of merits.
Costs against the defendant IBAA (now PCI Bank).
IT IS SO ORDERED."7
PCI Bank moved to reconsider the above-quoted decision of the
Court of Appeals, while Ford filed a "Motion for Partial
Reconsideration." Both motions were denied for lack of merit.
Separately, PCIBank and Ford filed before this Court, petitions
for review by certiorari under Rule 45.
In G.R. No. 121413, PCIBank seeks the reversal of the decision
and resolution of the Twelfth Division of the Court of Appeals
contending that it merely acted on the instruction of Ford and
such casue of action had already prescribed.
PCIBank sets forth the following issues for consideration:
I. Did the respondent court err when, after finding that the
petitioner acted on the check drawn by respondent Ford on the
said respondent's instructions, it nevertheless found the
petitioner liable to the said respondent for the full amount of the
said check.
II. Did the respondent court err when it did not find prescription
in favor of the petitioner.8
In a counter move, Ford filed its petition docketed as G.R. No.
121479, questioning the same decision and resolution of the
Court of Appeals, and praying for the reinstatement in toto of
the decision of the trial court which found both PCIBank and
Citibank jointly and severally liable for the loss.
In G.R. No. 121479, appellant Ford presents the following
propositions for consideration:
I. Respondent Citibank is liable to petitioner Ford considering
that:
1. As drawee bank, respondent Citibank owes to petitioner
Ford, as the drawer of the subject check and a depositor of
respondent Citibank, an absolute and contractual duty to pay
the proceeds of the subject check only to the payee thereof, the
Commissioner of Internal Revenue.
2. Respondent Citibank failed to observe its duty as banker with
respect to the subject check, which was crossed and payable to
"Payee's Account Only."
3. Respondent Citibank raises an issue for the first time on
appeal; thus the same should not be considered by the
Honorable Court.
4. As correctly held by the trial court, there is no evidence of
gross negligence on the part of petitioner Ford.9
II. PCI Bank is liable to petitioner Ford considering that:
1. There were no instructions from petitioner Ford to deliver the
proceeds of the subject check to a person other than the payee
named therein, the Commissioner of the Bureau of Internal
Revenue; thus, PCIBank's only obligation is to deliver the
proceeds to the Commissioner of the Bureau of Internal
Revenue.10
2. PCIBank which affixed its indorsement on the subject check
("All prior indorsement and/or lack of indorsement
guaranteed"), is liable as collecting bank.11
3. PCIBank is barred from raising issues of fact in the instant
proceedings.12
4. Petitioner Ford's cause of action had not prescribed.13
II. G.R. No. 128604
The same sysndicate apparently embezzled the proceeds of
checks intended, this time, to settle Ford's percentage taxes
appertaining to the second quarter of 1978 and the first quarter
of 1979.
The facts as narrated by the Court of Appeals are as follows:
Ford drew Citibank Check No. SN-10597 on July 19, 1978 in
the amount of P5,851,706.37 representing the percentage tax
due for the second quarter of 1978 payable to the
Commissioner of Internal Revenue. A BIR Revenue Tax
Receipt No. 28645385 was issued for the said purpose.
On April 20, 1979, Ford drew another Citibank Check No.
SN-16508 in the amount of P6,311,591.73, representing the
payment of percentage tax for the first quarter of 1979 and
payable to the Commissioner of Internal Revenue. Again a BIR
Revenue Tax Receipt No. A-1697160 was issued for the said
purpose.
Both checks were "crossed checks" and contain two diagonal
lines on its upper corner between, which were written the words
"payable to the payee's account only."
The checks never reached the payee, CIR. Thus, in a letter
dated February 28, 1980, the BIR, Region 4-B, demanded for
the said tax payments the corresponding periods above-
mentioned.
As far as the BIR is concernced, the said two BIR Revenue Tax
Receipts were considered "fake and spurious". This anomaly
was confirmed by the NBI upon the initiative of the BIR. The
findings forced Ford to pay the BIR a new, while an action was
filed against Citibank and PCIBank for the recovery of the
amount of Citibank Check Numbers SN-10597 and 16508.
The Regional Trial Court of Makati, Branch 57, which tried the
case, made its findings on the modus operandi of the syndicate,
as follows:
"A certain Mr. Godofredo Rivera was employed by the plaintiff
FORD as its General Ledger Accountant. As such, he prepared
the plaintiff's check marked Ex. 'A' [Citibank Check No.
Sn-10597] for payment to the BIR. Instead, however, fo
delivering the same of the payee, he passed on the check to a
co-conspirator named Remberto Castro who was a pro-manager
of the San Andres Branch of PCIB.* In connivance with one
Winston Dulay, Castro himself subsequently opened a
Checking Account in the name of a fictitious person
denominated as 'Reynaldo reyes' in the Meralco Branch of
PCIBank where Dulay works as Assistant Manager.
After an initial deposit of P100.00 to validate the account,
Castro deposited a worthless Bank of America Check in exactly
the same amount as the first FORD check (Exh. "A",
P5,851,706.37) while this worthless check was coursed through
PCIB's main office enroute to the Central Bank for clearing,
replaced this worthless check with FORD's Exhibit 'A' and
accordingly tampered the accompanying documents to cover
the replacement. As a result, Exhibit 'A' was cleared by
defendant CITIBANK, and the fictitious deposit account of
'Reynaldo Reyes' was credited at the PCIB Meralco Branch
with the total amount of the FORD check Exhibit 'A'. The same
method was again utilized by the syndicate in profiting from
Exh. 'B' [Citibank Check No. SN-16508] which was
subsequently pilfered by Alexis Marindo, Rivera's Assistant at
FORD.
From this 'Reynaldo Reyes' account, Castro drew various
checks distributing the sahres of the other participating
conspirators namely (1) CRISANTO BERNABE, the
mastermind who formulated the method for the embezzlement;
(2) RODOLFO R. DE LEON a customs broker who negotiated
the initial contact between Bernabe, FORD's Godofredo Rivera
and PCIB's Remberto Castro; (3) JUAN VASTILLO who
assisted de Leon in the initial arrangements; (4) GODOFREDO
RIVERA, FORD's accountant who passed on the first check
(Exhibit "A") to Castro; (5) REMERTO CASTRO, PCIB's pro-
manager at San Andres who performed the switching of checks
in the clearing process and opened the fictitious Reynaldo
Reyes account at the PCIB Meralco Branch; (6) WINSTON
DULAY, PCIB's Assistant Manager at its Meralco Branch, who
assisted Castro in switching the checks in the clearing process
and facilitated the opening of the fictitious Reynaldo Reyes'
bank account; (7) ALEXIS MARINDO, Rivera's Assistant at
FORD, who gave the second check (Exh. "B") to Castro; (8)
ELEUTERIO JIMENEZ, BIR Collection Agent who provided
the fake and spurious revenue tax receipts to make it appear
that the BIR had received FORD's tax payments.
Several other persons and entities were utilized by the syndicate
as conduits in the disbursements of the proceeds of the two
checks, but like the aforementioned participants in the
conspiracy, have not been impleaded in the present case. The
manner by which the said funds were distributed among them
are traceable from the record of checks drawn against the
original "Reynaldo Reyes" account and indubitably identify the
parties who illegally benefited therefrom and readily indicate in
what amounts they did so."14
On December 9, 1988, Regional Trial Court of Makati, Branch
57, held drawee-bank, Citibank, liable for the value of the two
checks while adsolving PCIBank from any liability, disposing
as follows:
"WHEREFORE, judgment is hereby rendered sentencing
defendant CITIBANK to reimburse plaintiff FORD the total
amount of P12,163,298.10 prayed for in its complaint, with 6%
interest thereon from date of first written demand until full
payment, plus P300,000.00 attorney's fees and expenses
litigation, and to pay the defendant, PCIB (on its counterclaim
to crossclaim) the sum of P300,000.00 as attorney's fees and
costs of litigation, and pay the costs.
SO ORDERED."15
Both Ford and Citibank appealed to the Court of Appeals which
affirmed,   in toto, the decision of the trial court. Hence, this
petition.
Petitioner Ford prays that judgment be rendered setting aside
the portion of the Court of Appeals decision and its resolution
dated March 5, 1997, with respect to the dismissal of the
complaint against PCIBank and holding Citibank solely
responsible for the proceeds of Citibank Check Numbers
SN-10597 and 16508 for P5,851,706.73 and P6,311,591.73
respectively.
Ford avers that the Court of Appeals erred in dismissing the
complaint against defendant PCIBank considering that:
I. Defendant PCIBank was clearly negligent when it failed to
exercise the diligence required to be exercised by it as a
banking insitution.
II. Defendant PCIBank clearly failed to observe the diligence
required in the selection and supervision of its officers and
employees.
III. Defendant PCIBank was, due to its negligence, clearly
liable for the loss or damage resulting to the plaintiff Ford as a
consequence of the substitution of the check consistent with
Section 5 of Central Bank Circular No. 580 series of 1977.
IV. Assuming arguedo that defedant PCIBank did not accept,
endorse or negotiate in due course the subject checks, it is
liable, under Article 2154 of the Civil Code, to return the
money which it admits having received, and which was
credited to it its Central bank account.16
The main issue presented for our consideration by these
petitions could be simplified as follows: Has petitioner Ford the
right to recover from the collecting bank (PCIBank) and the
drawee bank (Citibank) the value of the checks intended as
payment to the Commissioner of Internal Revenue? Or has
Ford's cause of action already prescribed?
Note that in these cases, the checks were drawn against the
drawee bank, but the title of the person negotiating the same
was allegedly defective because the instrument was obtained by
fraud and unlawful means, and the proceeds of the checks were
not remitted to the payee. It was established that instead of
paying the checks to the CIR, for the settlement of the
approprite quarterly percentage taxes of Ford, the checks were
diverted and encashed for the eventual distribution among the
mmbers of the syndicate. As to the unlawful negotiation of the
check the applicable law is Section 55 of the Negotiable
Instruments Law (NIL), which provides:
"When title defective -- The title of a person who negotiates an
instrument is defective within the meaning of this Act when he
obtained the instrument, or any signature thereto, by fraud,
duress, or fore and fear, or other unlawful means, or for an
illegal consideration, or when he negotiates it in breach of faith
or under such circumstances as amount to a fraud."
Pursuant to this provision, it is vital to show that the negotiation
is made by the perpetator in breach of faith amounting to fraud.
The person negotiating the checks must have gone beyond the
authority given by his principal. If the principal could prove
that there was no negligence in the performance of his duties,
he may set up the personal defense to escape liability and
recover from other parties who. Though their own negligence,
alowed the commission of the crime.
In this case, we note that the direct perpetrators of the offense,
namely the embezzlers belonging to a syndicate, are now
fugitives from justice. They have, even if temporarily, escaped
liability for the embezzlement of millions of pesos. We are thus
left only with the task of determining who of the present parties
before us must bear the burden of loss of these millions. It all
boils down to thequestion of liability based on the degree of
negligence among the parties concerned.
Foremost, we must resolve whether the injured party, Ford, is
guilty of the "imputed contributory negligence" that would
defeat its claim for reimbursement, bearing ing mind that its
employees, Godofredo Rivera and Alexis Marindo, were among
the members of the syndicate.
Citibank points out that Ford allowed its very own employee,
Godofredo Rivera, to negotiate the checks to his co-
conspirators, instead of delivering them to the designated
authorized collecting bank (Metrobank-Alabang) of the payee,
CIR. Citibank bewails the fact that Ford was remiss in the
supervision and control of its own employees, inasmuch as it
only discovered the syndicate's activities through the
information given by the payee of the checks after an
unreasonable period of time.
PCIBank also blames Ford of negligence when it allegedly
authorized Godofredo Rivera to divert the proceeds of Citibank
Check No. SN-04867, instead of using it to pay the BIR. As to
the subsequent run-around of unds of Citibank Check Nos.
SN-10597 and 16508, PCIBank claims that the proximate cause
of the damge to Ford lies in its own officers and employees
who carried out the fradulent schemes and the transactions.
These circumstances were not checked by other officers of the
company including its comptroller or internal auditor. PCIBank
contends that the inaction of Ford despite the enormity of the
amount involved was a sheer negligence and stated that, as
between two innocent persons, one of whom must suffer the
consequences of a breach of trust, the one who made it
possible, by his act of negligence, must bear the loss.
For its part, Ford denies any negligence in the performance of
its duties. It avers that there was no evidence presented before
the trial court showing lack of diligence on the part of Ford.
And, citing the case of Gempesaw vs. Court of Appeals,17 Ford
argues that even if there was a finding therein that the drawer
was negligent, the drawee bank was still ordered to pay
damages.
Furthermore, Ford contends the Godofredo rivera was not
authorized to make any representation in its behalf, specifically,
to divert the proceeds of the checks. It adds that Citibank raised
the issue of imputed negligence against Ford for the first time
on appeal. Thus, it should not be considered by this Court.
On this point, jurisprudence regarding the imputed negligence
of employer in a master-servant relationship is instructive.
Since a master may be held for his servant's wrongful act, the
law imputes to the master the act of the servant, and if that act
is negligent or wrongful and proximately results in injury to a
third person, the negligence or wrongful conduct is the
negligence or wrongful conduct of the master, for which he is
liable.18  The general rule is that if the master is injured by the
negligence of a third person and by the concuring contributory
negligence of his own servant or agent, the latter's negligence is
imputed to his superior and will defeat the superior's action
against the third person, asuming, of course that the
contributory negligence was the proximate cause of the injury
of which complaint is made.19
Accordingly, we need to determine whether or not the action of
Godofredo Rivera, Ford's General Ledger Accountant, and/or
Alexis Marindo, his assistant, was the proximate cause of the
loss or damage. AS defined, proximate cause is that which, in
the natural and continuous sequence, unbroken by any efficient,
intervening cause produces the injury and without the result
would not have occurred.20
It appears that although the employees of Ford initiated the
transactions attributable to an organized syndicate, in our view,
their actions were not the proximate cause of encashing the
checks payable to the CIR. The degree of Ford's negligence, if
any, could not be characterized as the proximate cause of the
injury to the parties.
The Board of Directors of Ford, we note, did not confirm the
request of Godofredo Rivera to recall Citibank Check No.
SN-04867. Rivera's instruction to replace the said check with
PCIBank's Manager's Check was not in theordinary course of
business which could have prompted PCIBank to validate the
same.
As to the preparation of Citibank Checks Nos. SN-10597 and
16508, it was established that these checks were made payable
to the CIR. Both were crossed checks. These checks were
apparently turned around by Ford's emploees, who were acting
on their own personal capacity.
Given these circumstances, the mere fact that the forgery was
committed by a drawer-payor's confidential employee or agent,
who by virtue of his position had unusual facilities for
perpertrating the fraud and imposing the forged paper upon the
bank, does notentitle the bank toshift the loss to the drawer-
payor, in the absence of some circumstance raising estoppel
against the drawer.21  This rule likewise applies to the checks
fraudulently negotiated or diverted by the confidential
employees who hold them in their possession.
With respect to the negligence of PCIBank in the payment of
the three checks involved, separately, the trial courts found
variations between the negotiation of Citibank Check No.
SN-04867 and the misapplication of total proceeds of Checks
SN-10597 and 16508. Therefore, we have to scrutinize,
separately, PCIBank's share of negligence when the syndicate
achieved its ultimate agenda of stealing the proceeds of these
checks.
G.R. Nos. 121413 and 121479
Citibank Check No. SN-04867 was deposited at PCIBank
through its Ermita Branch. It was coursed through the ordinary
banking transaction, sent to Central Clearing with the
indorsement at the back "all prior indorsements and/or lack of
indorsements guaranteed," and was presented to Citibank for
payment. Thereafter PCIBank, instead of remitting the proceeds
to the CIR, prepared two of its Manager's checks and enabled
the syndicate to encash the same.
On record, PCIBank failed to verify the authority of Mr. Rivera
to negotiate the checks. The neglect of PCIBank employees to
verify whether his letter requesting for the replacement of the
Citibank Check No. SN-04867 was duly authorized, showed
lack of care and prudence required in the circumstances.
Furthermore, it was admitted that PCIBank is authorized to
collect the payment of taxpayers in behalf of the BIR. As an
agent of BIR, PCIBank is duty bound to consult its principal
regarding the unwarranted instructions given by the payor or its
agent. As aptly stated by the trial court, to wit:
"xxx. Since the questioned crossed check was deposited with
IBAA [now PCIBank], which claimed to be a depository/
collecting bank of BIR, it has the responsibility to make sure
that the check in question is deposited in Payee's account only.
xxx      xxx      xxx
As agent of the BIR (the payee of the check), defendant IBAA
should receive instructions only from its principal BIR and not
from any other person especially so when that person is not
known to the defendant. It is very imprudent on the part of the
defendant IBAA to just rely on the alleged telephone call of the
one Godofredo Rivera and in his signature considering that the
plaintiff is not a client of the defendant IBAA."
It is a well-settled rule that the relationship between the payee
or holder of commercial paper and the bank to which it is sent
for collection is, in the absence of an argreement to the
contrary, that of principal and agent.22  A bank which receives
such paper for collection is the agent of the payee or holder.23
Even considering arguendo, that the diversion of the amount of
a check payable to the collecting bank in behalf of the
designated payee may be allowed, still such diversion must be
properly authorized by the payor. Otherwise stated, the
diversion can be justified only by proof of authority from the
drawer, or that the drawer has clothed his agent with apparent
authority to receive the proceeds of such check.
Citibank further argues that PCI Bank's clearing stamp
appearing at the back of the questioned checks stating that ALL
PRIOR INDORSEMENTS AND/OR LACK OF
INDORSEMENTS GURANTEED should render PCIBank
liable because it made it pass through the clearing house and
therefore Citibank had no other option but to pay it. Thus,
Citibank had no other option but to pay it. Thus, Citibank assets
that the proximate cause of Ford's injury is the gross negligence
of PCIBank. Since the questione dcrossed check was deposited
with PCIBank, which claimed to be a depository/collecting
bank of the BIR, it had the responsibility to make sure that the
check in questions is deposited in Payee's account only.
Indeed, the crossing of the check with the phrase "Payee's
Account Only," is a warning that the check should be deposited
only in the account of the CIR. Thus, it is the duty of the
collecting bank PCIBank to ascertain that the check be
deposited in payee's account only. Therefore, it is the collecting
bank (PCIBank) which is bound to scruninize the check and to
know its depositors before it could make the clearing
indorsement "all prior indorsements and/or lack of indorsement
guaranteed".
In   Banco de Oro Savings and Mortgage Bank vs. Equitable
Banking Corporation,24 we ruled:
"Anent petitioner's liability on said instruments, this court is in
full accord with the ruling of the PCHC's Board of Directors
that:
'In presenting the checks for clearing and for payment, the
defendant made an express guarantee on the validity of "all
prior endorsements." Thus, stamped at the back of the checks
are the defedant's clear warranty: ALL PRIOR
ENDORSEMENTS AND/OR LACK OF ENDORSEMENTS
GUARANTEED. Without such warranty, plaintiff would not
have paid on the checks.'
No amount of legal jargon can reverse the clear meaning of
defendant's warranty. As the warranty has proven to be false
and inaccurate, the defendant is liable for any damage arising
out of the falsity of its representation."25
Lastly, banking business requires that the one who first cashes
and negotiates the check must take some percautions to learn
whether or not it is genuine. And if the one cashing the check
through indifference or othe circumstance assists the forger in
committing the fraud, he should not be permitted to retain the
proceeds of the check from the drawee whose sole fault was
that it did not discover the forgery or the defect in the title of
the person negotiating the instrument before paying the check.
For this reason, a bank which cashes a check drawn upon
another bank, without requiring proof as to the identity of
persons presenting it, or making inquiries with regard to them,
cannot hold the proceeds against the drawee when the proceeds
of the checks were afterwards diverted to the hands of a third
party. In such cases the drawee bank has a right to believe that
the cashing bank (or the collecting bank) had, by the usual
proper investigation, satisfied itself of the authenticity of the
negotiation of the checks. Thus, one who encashed a check
which had been forged or diverted and in turn received payment
thereon from the drawee, is guilty of negligence which
proximately contributed to the success of the fraud practiced on
the drawee bank. The latter may recover from the holder the
money paid on the check.26
Having established that the collecting bank's negligence is the
proximate cause of the loss, we conclude that PCIBank is liable
in the amount corresponding to the proceeds of Citibank Check
No. SN-04867.
G.R. No. 128604
The trial court and the Court of Appeals found that PCIBank
had no official act in the ordinary course of business that would
attribute to it the case of the embezzlement of Citibank Check
Numbers SN-10597 and 16508, because PCIBank did not
actually receive nor hold the two Ford checks at all. The trial
court held, thus:
"Neither is there any proof that defendant PCIBank contributed
any official or conscious participation in the process of the
embezzlement. This Court is convinced that the switching
operation (involving the checks while in transit for "clearing")
were the clandestine or hidden actuations performed by the
members of the syndicate in their own personl, covert and
private capacity and done without the knowledge of the
defendant PCIBank…"27
In this case, there was no evidence presented confirming the
conscious particiapation of PCIBank in the embezzlement. As a
general rule, however, a banking corporation is liable for the
wrongful or tortuous acts and declarations of its officers or
agents within the course and scope of their employment.28  A
bank will be held liable for the negligence of its officers or
agents when acting within the course and scope of their
employment. It may be liable for the tortuous acts of its officers
even as regards that species of tort of which malice is an
essential element. In this case, we find a situation where the
PCIBank appears also to be the victim of the scheme hatched
by a syndicate in which its own management employees had
particiapted.
The pro-manager of San Andres Branch of PCIBank, Remberto
Castro, received Citibank Check Numbers SN-10597 and
16508. He passed the checks to a co-conspirator, an Assistant
Manager of PCIBank's Meralco Branch, who helped Castro
open a Checking account of a fictitious person named
"Reynaldo Reyes." Castro deposited a worthless Bank of
America Check in exactly the same amount of Ford checks.
The syndicate tampered with the checks and succeeded in
replacing the worthless checks and the eventual encashment of
Citibank Check Nos. SN 10597 and 16508. The PCIBank Ptro-
manager, Castro, and his co-conspirator Assistant Manager
apparently performed their activities using facilities in their
official capacity or authority but for their personal and private
gain or benefit.
A bank holding out its officers and agents as worthy of
confidence will not be permitted to profit by the frauds these
officers or agents were enabled to perpetrate in the apparent
course of their employment; nor will t be permitted to shirk its
responsibility for such frauds, even though no benefit may
accrue to the bank therefrom. For the general rule is that a bank
is liable for the fraudulent acts or representations of an officer
or agent acting within the course and apparent scope of his
employment or authority.29  And if an officer or employee of a
bank, in his official capacity, receives money to satisfy an
evidence of indebetedness lodged with his bank for collection,
the bank is liable for his misappropriation of such sum.30
Moreover, as correctly pointed out by Ford, Section 531   of
Central Bank Circular No. 580, Series of 1977 provides that
any theft affecting items in transit for clearing, shall be for the
account of sending bank, which in this case is PCIBank.
But in this case, responsibility for negligence does not lie on
PCIBank's shoulders alone.
The evidence on record shows that Citibank as drawee bank
was likewise negligent in the performance of its duties.
Citibank failed to establish that its payment of Ford's checjs
were made in due course and legally in order. In its defense,
Citibank claims the genuineness and due execution of said
checks, considering that Citibank (1) has no knowledge of any
informity in the issuance of the checks in question (2) coupled
by the fact that said checks were sufficiently funded and (3) the
endorsement of the Payee or lack thereof was guaranteed by
PCI Bank (formerly IBAA), thus, it has the obligation to honor
and pay the same.
For its part, Ford contends that Citibank as the drawee bank
owes to Ford an absolute and contractual duty to pay the
proceeds of the subject check only to the payee thereof, the
CIR. Citing Section 6232  of the Negotiable Instruments Law,
Ford argues that by accepting the instrument, the acceptro
which is Citibank engages that it will pay according to the tenor
of its acceptance, and that it will pay only to the payee, (the
CIR), considering the fact that here the check was crossed with
annotation "Payees Account Only."
As ruled by the Court of Appeals, Citibank must likewise
answer for the damages incurred by Ford on Citibank Checks
Numbers SN 10597 and 16508, because of the contractual
relationship existing between the two. Citibank, as the drawee
bank breached its contractual obligation with Ford and such
degree of culpability contributed to the damage caused to the
latter. On this score, we agree with the respondent court's
ruling.
Citibank should have scrutinized Citibank Check Numbers SN
10597 and 16508 before paying the amount of the proceeds
thereof to the collecting bank of the BIR. One thing is clear
from the record: the clearing stamps at the back of Citibank
Check Nos. SN 10597 and 16508 do not bear any initials.
Citibank failed to notice and verify the absence of the clearing
stamps. Had this been duly examined, the switching of the
worthless checks to Citibank Check Nos. 10597 and 16508
would have been discovered in time. For this reason, Citibank
had indeed failed to perform what was incumbent upon it,
which is to ensure that the amount of the checks should be paid
only to its designated payee. The fact that the drawee bank did
not discover the irregularity seasonably, in our view, consitutes
negligence in carrying out the bank's duty to its depositors. The
point is that as a business affected with public interest and
because of the nature of its functions, the bank is under
obligation to treat the accounts of its depositors with meticulous
care, always having in mind the fiduciary nature of their
relationship.33
Thus, invoking the doctrine of comparative negligence, we are
of the view that both PCIBank and Citibank failed in their
respective obligations and both were negligent in the selection
and supervision of their employees resulting in the encashment
of Citibank Check Nos. SN 10597 AND 16508. Thus, we are
constrained to hold them equally liable for the loss of the
proceeds of said checks issued by Ford in favor of the CIR.
Time and again, we have stressed that banking business is so
impressed with public interest where the trust and confidence of
the public in general is of paramount umportance such that the
appropriate standard of diligence must be very high, if not the
highest, degree of diligence.34  A bank's liability as obligor is
not merely vicarious but primary, wherein the defense of
exercise of due diligence in the selection and supervision of its
employees is of no moment.35
Banks handle daily transactions involving millions of pesos.
36  By the very nature of their work the degree of responsibility,
care and trustworthiness expected of their employees and
officials is far greater than those of ordinary clerks and
employees.37 Banks are expected to exercise the highest degree
of diligence in the selection and supervision of their employees.
38
On the issue of prescription, PCIBank claims that the action of
Ford had prescribed because of its inability to seek judicial
relief seasonably, considering that the alleged negligent act took
place prior to December 19, 1977 but the relief was sought only
in 1983, or seven years thereafter.
The statute of limitations begins to run when the bank gives the
depositor notice of the payment, which is ordinarily when the
check is returned to the alleged drawer as a voucher with a
statement of his account,39   and an action upon a check is
ordinarily governed by the statutory period applicable to
instruments in writing.40
Our laws on the matter provide that the action upon a written
contract must be brought within ten year from the time the right
of action accrues.41   hence, the reckoning time for the
prescriptive period begins when the instrument was issued and
the corresponding check was returned by the bank to its
depositor (normally a month thereafter). Applying the same
rule, the cause of action for the recovery of the proceeds of
Citibank Check No. SN 04867 would normally be a month after
December 19, 1977, when Citibank paid the face value of the
check in the amount of P4,746,114.41. Since the original
complaint for the cause of action was filed on January 20, 1984,
barely six years had lapsed. Thus, we conclude that Ford's
cause of action to recover the amount of Citibank Check No.
SN 04867 was seasonably filed within the period provided by
law.
Finally, we also find thet Ford is not completely blameless in its
failure to detect the fraud. Failure on the part of the depositor to
examine its passbook, statements of account, and cancelled
checks and to give notice within a reasonable time (or as
required by statute) of any discrepancy which it may in the
exercise of due care and diligence find therein, serves to
mitigate the banks' liability by reducing the award of interest
from twelve percent (12%) to six percent (6%) per annum. As
provided in Article 1172 of the Civil Code of the Philippines,
respondibility arising from negligence in the performance of
every kind of obligation is also demandable, but such liability
may be regulated by the courts, according to the circumstances.
In quasi-delicts, the contributory negligence of the plaintiff
shall reduce the damages that he may recover.42
WHEREFORE, the assailed Decision and Resolution of the
Court of Appeals in CA-G.R. CV No. 25017
are AFFIRMED. PCIBank, know formerly as Insular Bank of
Asia and America, id declared solely responsible for the loss of
the proceeds of Citibank Check No SN 04867 in the amount
P4,746,114.41, which shall be paid together with six percent
(6%) interest thereon to Ford Philippines Inc. from the date
when the original complaint was filed until said amount is fully
paid.
However, the Decision and Resolution of the Court of Appeals
in CA-G.R. No. 28430 are MODIFIED as follows: PCIBank
and Citibank are adjudged liable for and must share the loss,
(concerning the proceeds of Citibank Check Numbers SN
10597 and 16508 totalling P12,163,298.10) on a fifty-fifty ratio,
and each bank is   ORDERED   to pay Ford Philippines Inc.
P6,081,649.05, with six percent (6%) interest thereon, from the
date the complaint was filed until full payment of said amount.
Costs against Philippine Commercial International Bank and
Citibank N.A.
SO ORDERED.
 Republic of the Philippines
 its appointed place for taking on and letting off passengers, just
SUPREME COURT
 east of the intersection, it resumed its course at a moderate
Manila speed under the guidance of the motorman. The car had
proceeded only a short distance, however, when the plaintiff,
EN BANC Ignacio del Prado, ran across the street to catch the car, his
approach being made from the left. The car was of the kind
G.R. No. L-29462             March 7, 1929 having entrance and exist at either end, and the movement of
the plaintiff was so timed that he arrived at the front entrance of
IGNACIO DEL PRADO, plaintiff-appellee, 
 the car at the moment when the car was passing.
vs.

MANILA ELECTRIC CO., defendant-appellant. The testimony of the plaintiff and of Ciriaco Guevara, one of
his witnesses, tends to shows that the plaintiff, upon
STREET, J.: approaching the car, raised his hand as an indication to the
motorman of his desire to board the car, in response to which
This action was instituted in the Court of First Instance of
the motorman eased up a little, without stopping. Upon this the
Manila by Ignacio del Prado to recover damages in the amount
plaintiff seized, with his hand, the front perpendicular handspot,
of P50,000 for personal injuries alleged to have been caused by
at the same time placing his left foot upon the platform.
the negligence of te defendant, the Manila Electric Company, in
However, before the plaintiff's position had become secure, and
the operation of one of its street cars in the City of Manila.
even before his raised right foot had reached the flatform, the
Upon hearing the cause the trial court awarded to the plaintiff
motorman applied the power, with the result that the car gave a
the sum of P10,000, as damages, with costs of suit, and the
slight lurch forward. This sudden impulse to the car caused the
defendant appealed.
plaintiff's foot to slip, and his hand was jerked loose from the
handpost, He therefore fell to the ground, and his right foot was
The appellant, the Manila Electric Company, is engaged in
caught and crushed by the moving car. The next day the
operating street cars in the City for the conveyance of
member had to be amputated in the hospital. The witness,
passengers; and on the morning of November 18, 1925, one
Ciriaco Guevara, also stated that, as the plaintiff started to
Teodorico Florenciano, as appellant's motorman, was in charge
board the car, he grasped the handpost on either side with both
of car No. 74 running from east to west on R. Hidalgo Street,
right and left hand. The latter statement may possibly be
the scene of the accident being at a point near the intersection
incorrect as regards the use of his right hand by the plaintiff,
of said street and Mendoza Street. After the car had stopped at
but we are of the opinion that the finding of the trial court to the
effect that the motorman slowed up slightly as the plaintiff was
boarding the car that the plaintiff's fall was due in part at lease
to a sudden forward movement at the moment when the
plaintiff put his foot on the platform is supported by the
evidence and ought not to be disturbed by us.
The motorman stated at the trial that he did not see the plaintiff
attempting to board the car; that he did not accelerate the speed
of the car as claimed by the plaintiff's witnesses; and that he in
fact knew nothing of the incident until after the plaintiff had
been hurt and some one called to him to stop. We are not
convinced of the complete candor of this statement, for we are
unable to see how a motorman operating this car could have
failed to see a person boarding the car under the circumstances
revealed in this case. It must be remembered that the front
handpost which, as all witness agree, was grasped by the
plaintiff in attempting to board the car, was immediately on the
left side of the motorman.
With respect to the legal aspects of the case we may observe at
the outset that there is no obligation on the part of a street
railway company to stop its cars to let on intending passengers
at other points than those appointed for stoppage. In fact it
would be impossible to operate a system of street cars if a
company engage in this business were required to stop any and
everywhere to take on people who were too indolent, or who
imagine themselves to be in too great a hurry, to go to the
proper places for boarding the cars. Nevertheless, although the
motorman of this car was not bound to stop to let the plaintiff
on, it was his duty to do act that would have the effect of
increasing the plaintiff's peril while he was attempting to board
the car. The premature acceleration of the car was, in our
opinion, a breach of this duty.
The relation between a carrier of passengers for hire and its
patrons is of a contractual nature; and in failure on the part of
the carrier to use due care in carrying its passengers safely is a
breach of duty (culpa contructual) under articles 1101, 1103
and 1104 of the Civil Code. Furthermore, the duty that the
carrier of passengers owes to its patrons extends to persons
boarding the cars as well as to those alighting therefrom. The
case of Cangco vs. Manila Railroad Co. (38 Phil., 768),
supplies an instance of the violation of this duty with respect to
a passenger who was getting off of a train. In that case the
plaintiff stepped off of a moving train, while it was slowing
down in a station, and at the time when it was too dark for him
to see clearly where he was putting his feet. The employees of
the company had carelessly left watermelons on the platform at
the place where the plaintiff alighted, with the result that his
feet slipped and he fell under the car, where his right arm badly
injured. This court held that the railroad company was liable for
breach positive duty (culpa contractual), and the plaintiff was
awarded damages in the amount of P2,500 for the loss of his
arm. In the opinion in that case the distinction is clearly drawn
between a liability for negligence arising from breach of
contructual duty and that arising articles 1902 and 1903 of the
Civil Code (culpa aquiliana).
The distiction between these two sorts of negligence is
important in this jurisdiction, for the reason that where liability
arises from a mere tort (culpa aquiliana), not involving a
breach of positive obligation, an employer, or master, may
exculpate himself, under the last paragraph of article 1903 of
the Civil Code, by providing that he had exercised due
degligence to prevent the damage; whereas this defense is not
available if the liability of the master arises from a breach of
contrauctual duty (culpa contractual). In the case bfore us the
company pleaded as a special defense that it had used all the
deligence of a good father of a family to prevent the damage
suffered by the plaintiff; and to establish this contention the
company introduced testimony showing that due care had been
used in training and instructing the motorman in charge of this
car in his art. But this proof is irrelevant in view of the fact that
the liability involved was derived from a breach of obligation
under article 1101 of the Civil Code and related provisions.
(Manila Railroad Co. vs. Compana Transatlantica and Atlantic,
Gulf & Pacific Co., 38 Phil., 875, 887; De Guia vs. Manila
Electric Railroad & Light Co., 40 Phil., 706, 710.)
Another practical difference between liability for negligence
arising under 1902 of the Civil Code and liability arising from
negligence in the performance of a positive duty, under article
1101 and related provisions of the Civil Code, is that, in dealing
with the latter form of negligence, the court is given a
discretion to mitigate liability according to the circumstances of
the case (art 1103). No such general discretion is given by the
Code in dealing with liability arising under article 1902;
although possibly the same end is reached by courts in dealing
with the latter form of liability because of the latitude of the
considerations pertinent to cases arising under this article.
As to the contributory negligence of the plaintiff, we are of the
opinion that it should be treated, as in Rakes vs. Atlantic, Gulf
and Pacific Co. (7 Phil., 359), as a mitigating circumstance
under article 1103 of the Civil Code. It is obvious that the
plaintiff's negligence in attempting to board the moving car was
not the proximate cause of the injury. The direct and proximate
cause of the injury was the act of appellant's motorman in
putting on the power prematurely. A person boarding a moving
car must be taken to assume the risk of injury from boarding
the car under the conditions open to his view, but he cannot
fairly be held to assume the risk that the motorman, having the
situation in view, will increase his peril by accelerating the
speed of the car before he is planted safely on the platform.
Again, the situation before us is one where the negligent act of
the company's servant succeeded the negligent act of the
plaintiff, and the negligence of the company must be considered
the proximate cause of the injury. The rule here applicable
seems to be analogous to, if not identical with that which is
sometimes referred to as the doctrine of "the last clear chance."
In accordance with this doctrine, the contributory negligence of
the party injured will not defeat the action if it be shown that
the defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of the negligence of
the injured party (20 R. C. L., p. 139; Carr vs. Interurban Ry.
Co., 185 Iowa, 872; 171 N. W., 167). The negligence of the
plaintiff was, however, contributory to the accident and must be
considered as a mitigating circumstance.
With respect to the effect of this injury upon the plaintiff's
earning power, we note that, although he lost his foot, he is able
to use an artificial member without great inconvenience and his
earning capacity has probably not been reduced by more than
30 per centum. In view of the precedents found in our decisions
with respect to the damages that ought to be awarded for the
loss of limb, and more particularly Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil., 359); Cangco vs. Manila Railroad Co. (38
Phil., 768); and Borromeo vs. Manila Electric Railroad and
Light Co. (44 Phil., 165), and in view of all the circumstances
connected with the case, we are of the opinion that the plaintiff
will be adequately compensated by an award of P2,500.
It being understood, therefore, that the appealed judgment is
modified by reducing the recovery to the sum of P2,500, the
judgment, as thus modified, is affirmed. So ordered, with costs
against the appellant.
Republic of the Philippines

SUPREME COURT

Manila
EN BANC
G.R. No. L-4977             March 22, 1910
DAVID TAYLOR, plaintiff-appellee, 

vs.

THE MANILA ELECTRIC RAILROAD AND LIGHT
COMPANY, defendant-appellant.
CARSON, J.:
An action to recover damages for the loss of an eye and other
injuries, instituted by David Taylor, a minor, by his father, his
nearest relative.
The defendant is a foreign corporation engaged in the operation
of a street railway and an electric light system in the city of
Manila. Its power plant is situated at the eastern end of a small
island in the Pasig River within the city of Manila, known as
the Isla del Provisor. The power plant may be reached by boat
or by crossing a footbridge, impassable for vehicles, at the
westerly end of the island.
The plaintiff, David Taylor, was at the time when he received
the injuries complained of, 15 years of age, the son of a
mechanical engineer, more mature than the average boy of his
age, and having considerable aptitude and training in
mechanics.
On the 30th of September, 1905, plaintiff, with a boy named
Manuel Claparols, about 12 years of age, crossed the footbridge
to the Isla del Provisor, for the purpose of visiting one Murphy,
an employee of the defendant, who and promised to make them
a cylinder for a miniature engine. Finding on inquiry that Mr.
Murphy was not in his quarters, the boys, impelled apparently
by youthful curiosity and perhaps by the unusual interest which
both seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was made
on a Sunday afternoon, and it does not appear that they saw or
spoke to anyone after leaving the power house where they had
asked for Mr. Murphy.
After watching the operation of the travelling crane used in
handling the defendant's coal, they walked across the open
space in the neighborhood of the place where the company
dumped in the cinders and ashes from its furnaces. Here they
found some twenty or thirty brass fulminating caps scattered on
the ground. These caps are approximately of the size and
appearance of small pistol cartridges and each has attached to it
two long thin wires by means of which it may be discharged by
the use of electricity. They are intended for use in the explosion
of blasting charges of dynamite, and have in themselves a
considerable explosive power. After some discussion as to the
ownership of the caps, and their right to take them, the boys
picked up all they could find, hung them on stick, of which
each took end, and carried them home. After crossing the
footbridge, they met a little girl named Jessie Adrian, less than
9 years old, and all three went to the home of the boy Manuel.
The boys then made a series of experiments with the caps. They
trust the ends of the wires into an electric light socket and
obtained no result. They next tried to break the cap with a stone
and failed. Manuel looked for a hammer, but could not find one.
Then they opened one of the caps with a knife, and finding that
it was filled with a yellowish substance they got matches, and
David held the cap while Manuel applied a lighted match to the
contents. An explosion followed, causing more or less serious
injuries to all three. Jessie, who when the boys proposed putting
a match to the contents of the cap, became frightened and
started to run away, received a slight cut in the neck. Manuel
had his hand burned and wounded, and David was struck in the
face by several particles of the metal capsule, one of which
injured his right eye to such an extent as to the necessitate its
removal by the surgeons who were called in to care for his
wounds.
The evidence does definitely and conclusively disclose how the
caps came to be on the defendant's premises, nor how long they
had been there when the boys found them. It appears, however,
that some months before the accident, during the construction
of the defendant's plant, detonating caps of the same size and
kind as those found by the boys were used in sinking a well at
the power plant near the place where the caps were found; and
it also appears that at or about the time when these caps were
found, similarly caps were in use in the construction of an
extension of defendant's street car line to Fort William
McKinley. The caps when found appeared to the boys who
picked them up to have been lying for a considerable time, and
from the place where they were found would seem to have been
discarded as detective or worthless and fit only to be thrown
upon the rubbish heap.
No measures seems to have been adopted by the defendant
company to prohibit or prevent visitors from entering and
walking about its premises unattended, when they felt disposed
so to do. As admitted in defendant counsel's brief, "it is
undoubtedly true that children in their play sometimes crossed
the foot bridge to the islands;" and, we may add, roamed about
at will on the uninclosed premises of the defendant, in the
neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children
from visiting the defendant company's premises, although it
must be assumed that the company or its employees were aware
of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at
sea, as a cabin boy on one of the interisland transports. Later he
took up work in his father's office, learning mechanical drawing
and mechanical engineering. About a month after his accident
he obtained employment as a mechanical draftsman and
continued in that employment for six months at a salary of
P2.50 a day; and it appears that he was a boy of more than
average intelligence, taller and more mature both mentally and
physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind
fully and conclusively established by the evidence of record,
and are substantially admitted by counsel. The only questions
of fact which are seriously disputed are plaintiff's allegations
that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that
they had come from its possession and control, and that the
company or some of its employees left them exposed on its
premises at the point where they were found.
The evidence in support of these allegations is meager, and the
defendant company, apparently relying on the rule of law which
places the burden of proof of such allegations upon the
plaintiff, offered no evidence in rebuttal, and insists that
plaintiff failed in his proof. We think, however, that plaintiff's
evidence is sufficient to sustain a finding in accord with his
allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were
used, more or less extensively, on the McKinley extension of
the defendant company's track; that some of these caps were
used in blasting a well on the company's premises a few months
before the accident; that not far from the place where the caps
were found the company has a storehouse for the materials,
supplies and so forth, used by it in its operations as a street
railway and a purveyor of electric light; and that the place, in
the neighborhood of which the caps were found, was being
used by the company as a sort of dumping ground for ashes and
cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in
common use by the average citizen, and under all the
circumstances, and in the absence of all evidence to the
contrary, we think that the discovery of twenty or thirty of these
caps at the place where they were found by the plaintiff on
defendant's premises fairly justifies the inference that the
defendant company was either the owner of the caps in
question or had the caps under its possession and control. We
think also that the evidence tends to disclose that these caps or
detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found,
with the expectation that they would be buried out of the sight
by the ashes which it was engaged in dumping in that
neighborhood, they being old and perhaps defective; and,
however this may be, we are satisfied that the evidence is
sufficient to sustain a finding that the company or some of its
employees either willfully or through an oversight left them
exposed at a point on its premises which the general public,
including children at play, where not prohibited from visiting,
and over which the company knew or ought to have known that
young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the
probative value of the facts on which these conclusions are
based by intimidating or rather assuming that the blasting work
on the company's well and on its McKinley extension was done
by contractors. It was conclusively proven, however, that while
the workman employed in blasting the well was regularly
employed by J. G. White and Co., a firm of contractors, he did
the work on the well directly and immediately under the
supervision and control of one of defendant company's
foremen, and there is no proof whatever in the record that the
blasting on the McKinley extension was done by independent
contractors. Only one witness testified upon this point, and
while he stated that he understood that a part of this work was
done by contract, he could not say so of his own knowledge,
and knew nothing of the terms and conditions of the alleged
contract, or of the relations of the alleged contractor to the
defendant company. The fact having been proven that
detonating caps were more or less extensively employed on
work done by the defendant company's directions and on its
behalf, we think that the company should have introduced the
necessary evidence to support its contention if it wished to
avoid the not unreasonable inference that it was the owner of
the material used in these operations and that it was responsible
for tortious or negligent acts of the agents employed therein, on
the ground that this work had been intrusted to   independent
contractors   as to whose acts the maxim   respondent
superior should not be applied. If the company did not in fact
own or make use of caps such as those found on its premises, as
intimated by counsel, it was a very simple matter for it to prove
that fact, and in the absence of such proof we think that the
other evidence in the record sufficiently establishes the
contrary, and justifies the court in drawing the reasonable
inference that the caps found on its premises were its property,
and were left where they were found by the company or some
of its employees.
Plaintiff appears to have rested his case, as did the trial judge
his decision in plaintiff's favor, upon the provisions of article
1089 of the Civil Code read together with articles 1902, 1903,
and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by
quasi-contracts, and illicit acts and omissions or by those in
which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage
to another when there is fault or negligence shall be obliged to
repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also
for those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable
for the damages caused by the minors who live with them.
Owners or directors of an establishment or enterprise are
equally liable for damages caused by their employees in the
service of the branches in which the latter may be employed or
on account of their duties.
The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage
caused —
1 By the explosion of machines which may not have been cared
for with due diligence, and for kindling of explosive substances
which may not have been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly
upon his contention that the facts proven at the trial do not
established the liability of the defendant company under the
provisions of these articles, and since we agree with this view
of the case, it is not necessary for us to consider the various
questions as to form and the right of action (analogous to those
raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7
Phil. Rep., 359), which would, perhaps, be involved in a
decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code,
as under the generally accepted doctrine in the United States,
the plaintiff in an action such as that under consideration, in
order to establish his right to a recovery, must establish by
competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant
personally, or some person for whose acts it must respond, was
guilty.
(3) The connection of cause and effect between the negligence
and the damage.
These proposition are, of course, elementary, and do not admit
of discussion, the real difficulty arising in the application of
these principles to the particular facts developed in the case
under consideration.
It is clear that the accident could not have happened and not the
fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them
in an appropriate place; but it is equally clear that plaintiff
would not have been injured had he not, for his own pleasure
and convenience, entered upon the defendant's premises, and
strolled around thereon without the express permission of the
defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and
had he not thereafter deliberately cut open one of the caps and
applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's
youth and inexperience, his entry upon defendant company's
premises, and the intervention of his action between the
negligent act of defendant in leaving the caps exposed on its
premises and the accident which resulted in his injury should
not be held to have contributed in any wise to the accident,
which should be deemed to be the direct result of defendant's
negligence in leaving the caps exposed at the place where they
were found by the plaintiff, and this latter the proximate cause
of the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the
doctrine laid down in many of the courts of last resort in the
United States in the cases known as the "Torpedo" and
"Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether a
railroad company is liable for an injury received by an infant of
tender years, who from mere idle curiosity, or for the purposes
of amusement, enters upon the railroad company's premises, at
a place where the railroad company knew, or had good reason
to suppose, children would be likely to come, and there found
explosive signal torpedoes left unexposed by the railroad
company's employees, one of which when carried away by the
visitor, exploded and injured him; or where such infant found
upon the premises a dangerous machine, such as a turntable,
left in such condition as to make it probable that children in
playing with it would be exposed to accident or injury
therefrom and where the infant did in fact suffer injury in
playing with such machine.
In these, and in great variety of similar cases, the great weight
of authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.),
657), wherein the principal question was whether a railroad
company was liable for in injury received by an infant while
upon its premises, from idle curiosity, or for purposes of
amusement, if such injury was, under circumstances,
attributable to the negligence of the company), the principles on
which these cases turn are that "while a railroad company is not
bound to the same degree of care in regard to mere strangers
who are unlawfully upon its premises that it owes to passengers
conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its
tortious acts;" and that "the conduct of an infant of tender years
is not to be judged by the same rule which governs that of
adult. While it is the general rule in regard to an adult that to
entitle him to recover damages for an injury resulting from the
fault or negligence of another he must himself have been free
from fault, such is not the rule in regard to an infant of tender
years. The care and caution required of a child is according to
his maturity and capacity only, and this is to be determined in
each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was
vigorously controverted and sharply criticized in several state
courts, and the supreme court of Michigan in the case of Ryan
vs. Towar   (128 Mich., 463) formally repudiated and
disapproved the doctrine of the Turntable cases, especially that
laid down in   Railroad Company vs. Stout, in a very able
decision wherein it held, in the language of the syllabus: (1)
That the owner of the land is not liable to trespassers thereon
for injuries sustained by them, not due to his wanton or willful
acts; (2) that no exception to this rule exists in favor of children
who are injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or license to
cross the premises of another can not be predicated on the mere
fact that no steps have been taken to interfere with such
practice; (4) that there is no difference between children and
adults as to the circumstances that will warrant the inference of
an invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of   Railroad
Company vs. Stout   were indulged in by the courts in
Connecticut and Massachusetts. (Nolan   vs. Railroad Co., 53
Conn., 461; 154 Mass., 349). And the doctrine has been
questioned in Wisconsin, Pennsylvania, New Hampshire, and
perhaps in other States.
On the other hand, many if not most of the courts of last resort
in the United States, citing and approving the doctrine laid
down in England in the leading case of Lynch vs. Nurding (1 Q.
B., 29, 35, 36), lay down the rule in these cases in accord with
that announced in the Railroad Company vs. Stout (supra), and
the Supreme Court of the United States, in a unanimous opinion
delivered by Justice Harlan in the case of   Union Pacific
Railway Co. vs. McDonal and reconsidered the doctrine laid
down in Railroad Co. vs. Stout, and after an exhaustive and
critical analysis and review of many of the adjudged cases, both
English and American, formally declared that it adhered "to the
principles announced in the case of Railroad Co. vs. Stout."
In the case of   Union Pacific Railway Co. vs.
MacDonald (supra) the facts were as follows: The plaintiff, a
boy 12 years of age, out of curiosity and for his own pleasure,
entered upon and visited the defendant's premises, without
defendant's express permission or invitation, and while there,
was by accident injured by falling into a burning slack pile of
whose existence he had no knowledge, but which had been left
by defendant on its premises without any fence around it or
anything to give warning of its dangerous condition, although
defendant knew or had reason the interest or curiosity of
passers-by. On these facts the court held that the plaintiff could
not be regarded as a mere trespasser, for whose safety and
protection while on the premises in question, against the unseen
danger referred to, the defendant was under no obligation to
make provision.
We quote at length from the discussion by the court of the
application of the principles involved to the facts in that case,
because what is said there is strikingly applicable in the case at
bar, and would seem to dispose of defendant's contention that,
the plaintiff in this case being a trespasser, the defendant
company owed him no duty, and in no case could be held liable
for injuries which would not have resulted but for the entry of
plaintiff on defendant's premises.
We adhere to the principles announced in   Railroad Co. vs.
Stout (supra). Applied to the case now before us, they require
us to hold that the defendant was guilty of negligence in leaving
unguarded the slack pile, made by it in the vicinity of its depot
building. It could have forbidden all persons from coming to its
coal mine for purposes merely of curiosity and pleasure. But it
did not do so. On the contrary, it permitted all, without regard
to age, to visit its mine, and witness its operation. It knew that
the usual approach to the mine was by a narrow path skirting its
slack pit, close to its depot building, at which the people of the
village, old and young, would often assemble. It knew that
children were in the habit of frequenting that locality and
playing around the shaft house in the immediate vicinity of the
slack pit. The slightest regard for the safety of these children
would have suggested that they were in danger from being so
near a pit, beneath the surface of which was concealed (except
when snow, wind, or rain prevailed) a mass of burning coals
into which a child might accidentally fall and be burned to
death. Under all the circumstances, the railroad company ought
not to be heard to say that the plaintiff, a mere lad, moved by
curiosity to see the mine, in the vicinity of the slack pit, was a
trespasser, to whom it owed no duty, or for whose protection it
was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a
man dangerous traps, baited with flesh, in his own ground, so
near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises,
would probably be attracted by their instinct into the traps, and
in consequence of such act his neighbor's dogs be so attracted
and thereby injured, an action on the case would lie. "What
difference," said Lord Ellenborough, C.J., "is there in reason
between drawing the animal into the trap by means of his
instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in
this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of
its slack pile, and an implied license, resulting from the habit of
the defendant to permit them, without objection or warning, to
do so at will, for purposes of curiosity or pleasure? Referring it
the case of Townsend vs. Wathen, Judge Thompson, in his work
on the Law of Negligence, volume 1, page 305, note, well says:
"It would be a barbarous rule of law that would make the owner
of land liable for setting a trap thereon, baited with stinking
meat, so that his neighbor's dog attracted by his natural instinct,
might run into it and be killed, and which would exempt him
from liability for the consequence of leaving exposed and
unguarded on his land a dangerous machine, so that his
neighbor's child attracted to it and tempted to intermeddle with
it by instincts equally strong, might thereby be killed or
maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court
of Michigan, in the case of Powers vs. Harlow (53 Mich., 507),
said that (p. 515):
Children, wherever they go, must be expected to act upon
childlike instincts and impulses; and others who are chargeable
with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave
exposed to the observation of children anything which would
be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle
or play with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to
the doctrine of implied invitation to visit the premises of
another, says:
In the case of young children, and other persons not fully sui
juris, an implied license might sometimes arise when it would
not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to
gather for that purpose, may be equivalent to an invitation to
them to make use of it; and, perhaps, if one were to throw away
upon his premises, near the common way, things tempting to
children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United
States to its conclusion in the cases of   Railroad Co. vs.
Stout   (supra) and   Union Pacific Railroad Co. vs.
McDonald   (supra) is not less cogent and convincing in this
jurisdiction than in that wherein those cases originated.
Children here are actuated by similar childish instincts and
impulses. Drawn by curiosity and impelled by the restless spirit
of youth, boys here as well as there will usually be found
whenever the public is permitted to congregate. The movement
of machinery, and indeed anything which arouses the attention
of the young and inquiring mind, will draw them to the
neighborhood as inevitably as does the magnet draw the iron
which comes within the range of its magnetic influence. The
owners of premises, therefore, whereon things attractive to
children are exposed, or upon which the public are expressly or
impliedly permitted to enter or upon which the owner knows or
ought to know children are likely to roam about for pastime and
in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not
be heard to say that because the child has entered upon his
premises without his express permission he is a trespasser to
whom the owner owes no duty or obligation whatever. The
owner's failure to take reasonable precautions to prevent the
child from entering his premises at a place where he knows or
ought to know that children are accustomed to roam about of to
which their childish instincts and impulses are likely to attract
them is at least equivalent to an implied license to enter, and
where the child does enter under such conditions the owner's
failure to take reasonable precautions to guard the child against
injury from unknown or unseen dangers, placed upon such
premises by the owner, is clearly a breach of duty, responsible,
if the child is actually injured, without other fault on its part
than that it had entered on the premises of a stranger without
his express invitation or permission. To hold otherwise would
be expose all the children in the community to unknown perils
and unnecessary danger at the whim of the owners or occupants
of land upon which they might naturally and reasonably be
expected to enter.
This conclusion is founded on reason, justice, and necessity,
and neither is contention that a man has a right to do what will
with his own property or that children should be kept under the
care of their parents or guardians, so as to prevent their entering
on the premises of others is of sufficient weight to put in doubt.
In this jurisdiction as well as in the United States all private
property is acquired and held under the tacit condition that it
shall not be so used as to injure the equal rights and interests of
the community (see U. S.   vs. Toribio,1   No. 5060, decided
January 26, 1910), and except as to infants of very tender years
it would be absurd and unreasonable in a community organized
as is that in which we lived to hold that parents or guardian are
guilty of negligence or imprudence in every case wherein they
permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the
negligence of the parent could in any event be imputed to the
child so as to deprive it a right to recover in such cases — a
point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon
defendant's property without defendant's express invitation or
permission would not have relieved defendant from
responsibility for injuries incurred there by plaintiff, without
other fault on his part, if such injury were attributable to the
negligence of the defendant, we are of opinion that under all the
circumstances of this case the negligence of the defendant in
leaving the caps exposed on its premises was not the proximate
cause of the injury received by the plaintiff, which therefore
was not, properly speaking, "attributable to the negligence of
the defendant," and, on the other hand, we are satisfied that
plaintiffs action in cutting open the detonating cap and putting
match to its contents was the proximate cause of the explosion
and of the resultant injuries inflicted upon the plaintiff, and that
the defendant, therefore is not civilly responsible for the
injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and
Torpedo cases, that because of plaintiff's youth the intervention
of his action between the negligent act of the defendant in
leaving the caps exposed on its premises and the explosion
which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can
not agree with this proposition, although we accept the doctrine
of the Turntable and Torpedo cases, that we have thought
proper to discuss and to consider that doctrine at length in this
decision. As was said in case of Railroad Co. vs. Stout (supra),
"While it is the general rule in regard to an adult that to entitle
him to recover damages for an injury resulting from the fault or
negligence of another he must himself have been free from
fault, such is not the rule in regard to an infant of tender years.
The care and caution required of a child is according to his
maturity and capacity only, and this is to be determined in each
case by the circumstances of the case." As we think we have
shown, under the reasoning on which rests the doctrine of the
Turntable and Torpedo cases, no fault which would relieve
defendant of responsibility for injuries resulting from its
negligence can be attributed to the plaintiff, a well-grown boy
of 15 years of age, because of his entry upon defendant's
uninclosed premises without express permission or invitation'
but it is wholly different question whether such youth can be
said to have been free from fault when he willfully and
deliberately cut open the detonating cap, and placed a match to
the contents, knowing, as he undoubtedly did, that his action
would result in an explosion. On this point, which must be
determined by "the particular circumstances of this case," the
doctrine laid down in the Turntable and Torpedo cases lends us
no direct aid, although it is worthy of observation that in all of
the "Torpedo" and analogous cases which our attention has
been directed, the record discloses that the plaintiffs, in whose
favor judgments have been affirmed, were of such tender years
that they were held not to have the capacity to understand the
nature or character of the explosive instruments which fell into
their hands.
In the case at bar, plaintiff at the time of the accident was a
well-grown youth of 15, more mature both mentally and
physically than the average boy of his age; he had been to sea
as a cabin boy; was able to earn P2.50 a day as a mechanical
draftsman thirty days after the injury was incurred; and the
record discloses throughout that he was exceptionally well
qualified to take care of himself. The evidence of record leaves
no room for doubt that, despite his denials on the witness stand,
he well knew the explosive character of the cap with which he
was amusing himself. The series of experiments made by him
in his attempt to produce an explosion, as described by the little
girl who was present, admit of no other explanation. His
attempt to discharge the cap by the use of electricity, followed
by his efforts to explode it with a stone or a hammer, and the
final success of his endeavors brought about by the application
of a match to the contents of the caps, show clearly that he
knew what he was about. Nor can there be any reasonable
doubt that he had reason to anticipate that the explosion might
be dangerous, in view of the fact that the little girl, 9 years of
age, who was within him at the time when he put the match to
the contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the
precise nature of the explosion which might be expected from
the ignition of the contents of the cap, and of course he did not
anticipate the resultant injuries which he incurred; but he well
knew that a more or less dangerous explosion might be
expected from his act, and yet he willfully, recklessly, and
knowingly produced the explosion. It would be going far to say
that "according to his maturity and capacity" he exercised such
and "care and caution" as might reasonably be required of him,
or that defendant or anyone else should be held civilly
responsible for injuries incurred by him under such
circumstances.
The law fixes no arbitrary age at which a minor can be said to
have the necessary capacity to understand and appreciate the
nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and
precaution in the commission of such acts; and indeed it would
be impracticable and perhaps impossible so to do, for in the
very nature of things the question of negligence necessarily
depends on the ability of the minor to understand the character
of his own acts and their consequences; and the age at which a
minor can be said to have such ability will necessarily depends
of his own acts and their consequences; and at the age at which
a minor can be said to have such ability will necessarily vary in
accordance with the varying nature of the infinite variety of acts
which may be done by him. But some idea of the presumed
capacity of infants under the laws in force in these Islands may
be gathered from an examination of the varying ages fixed by
our laws at which minors are conclusively presumed to be
capable of exercising certain rights and incurring certain
responsibilities, though it can not be said that these provisions
of law are of much practical assistance in cases such as that at
bar, except so far as they illustrate the rule that the capacity of a
minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the
Penal Code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to held criminally
responsible therefore, although the fact that he is less than
eighteen years of age will be taken into consideration as an
extenuating circumstance (Penal Code, arts. 8 and 9). At 10
years of age a child may, under certain circumstances, choose
which parent it prefers to live with (Code of Civil Procedure,
sec. 771). At 14 may petition for the appointment of a guardian
(Id., sec. 551), and may consent or refuse to be adopted (Id.,
sec. 765). And males of 14 and females of 12 are capable of
contracting a legal marriage (Civil Code, art. 83; G. O., No. 68,
sec. 1).
We are satisfied that the plaintiff in this case had sufficient
capacity and understanding to be sensible of the danger to
which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that his
age and his experience qualified him to understand and
appreciate the necessity for the exercise of that degree of
caution which would have avoided the injury which resulted
from his own deliberate act; and that the injury incurred by him
must be held to have been the direct and immediate result of his
own willful and reckless act, so that while it may be true that
these injuries would not have been incurred but for the
negligence act of the defendant in leaving the caps exposed on
its premises, nevertheless plaintiff's own act was the proximate
and principal cause of the accident which inflicted the injury.
The rule of the Roman law was:   Quod quis ex culpa sua
damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17
rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which
comes to him through his own fault, and that he can not
demand reparation therefor from another. (Law 25, tit.
5, Partida 3.)
And they even said that when a man received an injury through
his own acts the grievance should be against himself and not
against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury
through his own acts the grievance should be against himself
and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil
Code which expressly lays down the law touching contributory
negligence in this jurisdiction, nevertheless, the interpretation
placed upon its provisions by the supreme court of Spain, and
by this court in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case
at bar the right to recover damages from the defendant, in
whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of
March, 1902 (93 Jurisprudencia Civil, 391), is directly in point.
In that case the court said:
According to the doctrine expressed in article 1902 of the Civil
Code, fault or negligence is a source of obligation when
between such negligence and the injury there exists the relation
of cause and effect; but if the injury produced should not be the
result of acts or omissions of a third party, the latter has no
obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown
that the immediate cause of the injury was the negligence of the
injured party himself.
The same court, in its decision of June 12, 1900, said that "the
existence of the alleged fault or negligence is not sufficient
without proof that it, and no other cause, gave rise to the
damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing
under that title in his Jurisprudencia del Codigo Civil (1902
Anuario, p. 455), commenting on the decision of March 7, 1902
of the Civil Code, fault or negligence gives rise to an obligation
when between it and the damage there exists the relation of
cause and effect; but if the damage caused does not arise from
the acts or omissions of a third person, there is no obligation to
make good upon the latter, even though such acts or omissions
be imprudent or illegal, and much less so when it is shown that
the immediate cause of the damage has been the recklessness of
the injured party himself.
And again —
In accordance with the fundamental principle of proof, that the
burden thereof is upon the plaintiff, it is apparent that it is duty
of him who shall claim damages to establish their existence.
The decisions of April 9, 1896, and March 18, July, and
September 27, 1898, have especially supported the principle,
the first setting forth in detail the necessary points of the proof,
which are two: An act or omission on the part of the person
who is to be charged with the liability, and the production of the
damage by said act or omission.
This includes, by inference, the establishment of a relation of
cause or effect between the act or omission and the damage; the
latter must be the direct result of one of the first two. As the
decision of March 22, 1881, said, it is necessary that the
damages result immediately and directly from an act performed
culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who
alleges it. (Scavoela, Jurisprudencia del Codigo Civil, vol. 6,
pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and
June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to
the case at bar was definitely settled in this court in the
maturely considered case of Rakes vs. Atlantic, Gulf and Pacific
Co. (supra), wherein we held that while "There are many cases
(personal injury cases) was exonerated," on the ground that "the
negligence of the plaintiff was the immediate cause of the
casualty" (decisions of the 15th of January, the 19th of
February, and the 7th of March, 1902, stated in Alcubilla's
Index of that year); none of the cases decided by the supreme
court of Spain "define the effect to be given the negligence of
its causes, though not the principal one, and we are left to seek
the theory of the civil law in the practice of other countries;"
and in such cases we declared that law in this jurisdiction to
require the application of "the principle of proportional
damages," but expressly and definitely denied the right of
recovery when the acts of the injured party were the immediate
causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of
the injured party shall be considered immediate causes of the
accident. The test is simple. Distinction must be made between
the accident and the injury, between the event itself, without
which there could have been no accident, and those acts of the
victim not entering into it, independent of it, but contributing to
his own proper hurt. For instance, the cause of the accident
under review was the displacement of the crosspiece or the
failure to replace it. This produces the event giving occasion for
damages—that is, the sinking of the track and the sliding of the
iron rails. To this event, the act of the plaintiff in walking by the
side of the car did not contribute, although it was an element of
the damage which came to himself. Had the crosspiece been out
of place wholly or partly through his act or omission of duty,
that would have been one of the determining causes of the
event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction
with the occurrence, he contributes only to his own injury, he
may recover the amount that the defendant responsible for the
event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the
immediate cause of the explosion, the accident which resulted
in plaintiff's injury, was in his own act in putting a match to the
contents of the cap, and that having "contributed to the
principal occurrence, as one of its determining factors, he can
not recover."
We have not deemed it necessary to examine the effect of
plaintiff's action in picking up upon defendant's premises the
detonating caps, the property of defendant, and carrying the
relation of cause and effect between the negligent act or
omission of the defendant in leaving the caps exposed on its
premises and the injuries inflicted upon the plaintiff by the
explosion of one of these caps. Under the doctrine of the
Torpedo cases, such action on the part of an infant of very
tender years would have no effect in relieving defendant of
responsibility, but whether in view of the well-known fact
admitted in defendant's brief that "boys are snappers-up of
unconsidered trifles," a youth of the age and maturity of
plaintiff should be deemed without fault in picking up the caps
in question under all the circumstances of this case, we neither
discuss nor decide.
Twenty days after the date of this decision let judgment be
entered reversing the judgment of the court below, without
costs to either party in this instance, and ten days thereafter let
the record be returned to the court wherein it originated, where
the judgment will be entered in favor of the defendant for the
costs in first instance and the complaint dismissed without day.
So ordered.
 Republic of the Philippines
 On August 4, 1964, plaintiff Engineering Construction, Inc.,
SUPREME COURT
 being a successful bidder, executed a contract in Manila with
Manila the National Waterworks and Sewerage Authority (NAWASA),
whereby the former undertook to furnish all tools, labor,
THIRD DIVISION equipment, and materials (not furnished by Owner), and to
construct the proposed 2nd lpo-Bicti Tunnel, Intake and Outlet
G.R. No. L-47379 May 16, 1988 Structures, and Appurtenant Structures, and Appurtenant
Features, at Norzagaray, Bulacan, and to complete said works
NATIONAL POWER CORPORATION, petitioner, 
 within eight hundred (800) calendar days from the date the
vs.
 Contractor receives the formal notice to proceed (Exh. A).
HONORABLE COURT OF APPEALS and
ENGINEERING CONSTRUCTION, INC., respondents. The project involved two (2) major phases: the first phase
comprising, the tunnel work covering a distance of seven (7)
GUTIERREZ, JR., J.: kilometers, passing through the mountain, from the Ipo river, a
part of Norzagaray, Bulacan, where the Ipo Dam of the
These consolidated petitions seek to set aside the decision of
defendant National Power Corporation is located, to Bicti; the
the respondent Court of Appeals which adjudged the National
Power Corporation liable for damages against Engineering other phase consisting of the outworks at both ends of the
Construction, Inc. The appellate court, however, reduced the tunnel.
amount of damages awarded by the trial court. Hence, both
parties filed their respective petitions: the National Power By September 1967, the plaintiff corporation already had
Corporation (NPC) in G.R. No. 47379, questioning the decision completed the first major phase of the work, namely, the tunnel
of the Court of Appeals for holding it liable for damages and excavation work. Some portions of the outworks at the Bicti
the Engineering Construction, Inc. (ECI) in G.R. No. 47481, site were still under construction. As soon as the plaintiff
questioning the same decision for reducing the consequential
corporation had finished the tunnel excavation work at the Bicti
damages and attorney's fees and for eliminating the exemplary
damages. site, all the equipment no longer needed there were transferred
to the Ipo site where some projects were yet to be completed.
The facts are succinctly summarized by the respondent Court of
Appeals, as follows: The record shows that on November 4,1967, typhoon 'Welming'
hit Central Luzon, passing through defendant's Angat Hydro-
electric Project and Dam at lpo, Norzagaray, Bulacan. Strong
winds struck the project area, and heavy rains intermittently
fell. Due to the heavy downpour, the water in the reservoir of
the Angat Dam was rising perilously at the rate of sixty (60)
centimeters per hour. To prevent an overflow of water from the
dam, since the water level had reached the danger height of 212
meters above sea level, the defendant corporation caused the
opening of the spillway gates." (pp. 45-46, L-47379, Rollo)
The appellate court sustained the findings of the trial court that
the evidence preponlderantly established the fact that due to the
negligent manner with which the spillway gates of the Angat
Dam were opened, an extraordinary large volume of water
rushed out of the gates, and hit the installations and
construction works of ECI at the lpo site with terrific impact, as
a result of which the latter's stockpile of materials and supplies,
camp facilities and permanent structures and accessories either
washed away, lost or destroyed.
The appellate court further found that:
It cannot be pretended that there was no negligence or that the
appellant exercised extraordinary care in the opening of the
spillway gates of the Angat Dam. Maintainers of the dam knew
very well that it was far more safe to open them gradually. But
the spillway gates were opened only when typhoon Welming
was already at its height, in a vain effort to race against time
and prevent the overflow of water from the dam as it 'was rising
dangerously at the rate of sixty centimeters per hour. 'Action
could have been taken as early as November 3, 1967, when the
water in the reservoir was still low. At that time, the gates of the
dam could have been opened in a regulated manner. Let it be
stressed that the appellant knew of the coming of the typhoon
four days before it actually hit the project area. (p. 53, L-47379,
Rollo)
As to the award of damages, the appellate court held:
We come now to the award of damages. The appellee submitted
a list of estimated losses and damages to the tunnel project (Ipo
side) caused by the instant flooding of the Angat River (Exh.
J-1). The damages were itemized in four categories, to wit:
Camp Facilities P55,700.00; Equipment, Parts and Plant —
P375,659.51; Materials P107,175.80; and Permanent Structures
and accessories — P137,250.00, with an aggregate total amount
of P675,785.31. The list is supported by several vouchers which
were all submitted as Exhibits K to M-38 a, N to O, P to U-2
and V to X- 60-a (Vide: Folders Nos. 1 to 4). The appellant did
not submit proofs to traverse the aforementioned documentary
evidence. We hold that the lower court did not commit any
error in awarding P 675,785.31 as actual or compensatory
damages.
However, We cannot sustain the award of P333,200.00 as
consequential damages. This amount is broken down as
follows: P213,200.00 as and for the rentals of a crane to
temporarily replace the one "destroyed beyond repair," and
P120,000.00 as one month bonus which the appellee failed to
realize in accordance with the contract which the appellee had
with NAWASA. Said rental of the crane allegedly covered the
period of one year at the rate of P40.00 an hour for 16 hours a
day. The evidence, however, shows that the appellee bought a
crane also a crawler type, on November 10, 1967, six (6) days
after the incident in question (Exh N) And according to the
lower court, which finding was never assailed, the appellee
resumed its normal construction work on the Ipo- Bicti Project
after a stoppage of only one month. There is no evidence when
the appellee received the crane from the seller, Asian Enterprise
Limited. But there was an agreement that the shipment of the
goods would be effected within 60 days from the opening of the
letter of credit (Exh. N).<äre||anº•1àw> It appearing that the
contract of sale was consummated, We must conclude or at
least assume that the crane was delivered to the appellee within
60 days as stipulated. The appellee then could have availed of
the services of another crane for a period of only one month
(after a work stoppage of one month) at the rate of P 40.00 an
hour for 16 hours a day or a total of P 19,200.00 as rental.
But the value of the new crane cannot be included as part of
actual damages because the old was reactivated after it was
repaired. The cost of the repair was P 77,000.00 as shown in
item No. 1 under the Equipment, Parts and Plants category
(Exh. J-1), which amount of repair was already included in the
actual or compensatory damages. (pp. 54-56, L-47379, Rollo)
The appellate court likewise rejected the award of unrealized
bonus from NAWASA in the amount of P120,000.00 (computed
at P4,000.00 a day in case construction is finished before the
specified time, i.e., within 800 calendar days), considering that
the incident occurred after more than three (3) years or one
thousand one hundred seventy (1,170) days. The court also
eliminated the award of exemplary damages as there was no
gross negligence on the part of NPC and reduced the amount of
attorney's fees from P50,000.00 to P30,000.00.
In these consolidated petitions, NPC assails the appellate court's
decision as being erroneous on the ground that the destruction
and loss of the ECI's equipment and facilities were due to force
majeure. It argues that the rapid rise of the water level in the
reservoir of its Angat Dam due to heavy rains brought about by
the typhoon was an extraordinary occurrence that could not
have been foreseen, and thus, the subsequent release of water
through the spillway gates and its resultant effect, if any, on
ECI's equipment and facilities may rightly be attributed to force
majeure.
On the other hand, ECI assails the reduction of the
consequential damages from P333,200.00 to P19,000.00 on the
grounds that the appellate court had no basis in concluding that
ECI acquired a new Crawler-type crane and therefore, it only
can claim rentals for the temporary use of the leased crane for a
period of one month; and that the award of P4,000.00 a day or
P120,000.00 a month bonus is justified since the period
limitation on ECI's contract with NAWASA had dual effects,
i.e., bonus for earlier completion and liquidated damages for
delayed performance; and in either case at the rate of P4,000.00
daily. Thus, since NPC's negligence compelled work stoppage
for a period of one month, the said award of P120,000.00 is
justified. ECI further assailes the reduction of attorney's fees
and the total elimination of exemplary damages.
Both petitions are without merit.
It is clear from the appellate court's decision that based on its
findings of fact and that of the trial court's, petitioner NPC was
undoubtedly negligent because it opened the spillway gates of
the Angat Dam only at the height of typhoon "Welming" when
it knew very well that it was safer to have opened the same
gradually and earlier, as it was also undeniable that NPC knew
of the coming typhoon at least four days before it actually
struck. And even though the typhoon was an act of God or what
we may call force majeure, NPC cannot escape liability
because its negligence was the proximate cause of the loss and
damage. As we have ruled in Juan F. Nakpil & Sons v. Court of
Appeals, (144 SCRA 596, 606-607):
Thus, if upon the happening of a fortuitous event or an act of
God, there concurs a corresponding fraud, negligence, delay or
violation or contravention in any manner of the tenor of the
obligation as provided for in Article 1170 of the Civil Code,
which results in loss or damage, the obligor cannot escape
liability.
The principle embodied in the act of God doctrine strictly
requires that the act must be one occasioned exclusively by the
violence of nature and human agencies are to be excluded from
creating or entering into the cause of the mischief. When the
effect, the cause of which is to be considered, is found to be in
part the result of the participation of man, whether it be from
active intervention or neglect, or failure to act, the whole
occurrence is thereby humanized, as it was, and removed from
the rules applicable to the acts of God. (1 Corpus Juris, pp.
1174-1175).
Thus, it has been held that when the negligence of a person
concurs with an act of God in producing a loss, such person is
not exempt from liability by showing that the immediate cause
of the damage was the act of God. To be exempt from liability
for loss because of an act of God, he must be free from any
previous negligence or misconduct by which the loss or damage
may have been occasioned. (Fish & Elective Co. v. Phil.
Motors, 55 Phil. 129; Tucker v. Milan 49 O.G. 4379;
Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594,
604; Lasam v. Smith, 45 Phil. 657).
Furthermore, the question of whether or not there was
negligence on the part of NPC is a question of fact which
properly falls within the jurisdiction of the Court of Appeals
and will not be disturbed by this Court unless the same is
clearly unfounded. Thus, in Tolentino v. Court of appeals, (150
SCRA 26, 36) we ruled:
Moreover, the findings of fact of the Court of Appeals are
generally final and conclusive upon the Supreme Court
(Leonardo v. Court of Appeals, 120 SCRA 890 [1983]. In fact it
is settled that the Supreme Court is not supposed to weigh
evidence but only to determine its substantially (Nuñez v.
Sandiganbayan, 100 SCRA 433 [1982] and will generally not
disturb said findings of fact when supported by substantial
evidence (Aytona v. Court of Appeals, 113 SCRA 575 [1985];
Collector of Customs of Manila v. Intermediate Appellate
Court, 137 SCRA 3 [1985]. On the other hand substantial
evidence is defined as such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion
(Philippine Metal Products, Inc. v. Court of Industrial
Relations, 90 SCRA 135 [1979]; Police Commission v. Lood,
127 SCRA 757 [1984]; Canete v. WCC, 136 SCRA 302 [1985])
Therefore, the respondent Court of Appeals did not err in
holding the NPC liable for damages.
Likewise, it did not err in reducing the consequential damages
from P333,200.00 to P19,000.00. As shown by the records,
while there was no categorical statement or admission on the
part of ECI that it bought a new crane to replace the damaged
one, a sales contract was presented to the effect that the new
crane would be delivered to it by Asian Enterprises within 60
days from the opening of the letter of credit at the cost of
P106,336.75. The offer was made by Asian Enterprises a few
days after the flood. As compared to the amount of P106,336.75
for a brand new crane and paying the alleged amount of
P4,000.00 a day as rental for the use of a temporary crane,
which use petitioner ECI alleged to have lasted for a period of
one year, thus, totalling P120,000.00, plus the fact that there
was already a sales contract between it and Asian Enterprises,
there is no reason why ECI should opt to rent a temporary crane
for a period of one year. The appellate court also found that the
damaged crane was subsequently repaired and reactivated and
the cost of repair was P77,000.00. Therefore, it included the
said amount in the award of of compensatory damages, but not
the value of the new crane. We do not find anything erroneous
in the decision of the appellate court that the consequential
damages should represent only the service of the temporary
crane for one month. A contrary ruling would result in the
unjust enrichment of ECI.
The P120,000.00 bonus was also properly eliminated as the
same was granted by the trial court on the premise that it
represented ECI's lost opportunity "to earn the one month
bonus from NAWASA ... ." As stated earlier, the loss or damage
to ECI's equipment and facilities occurred long after the
stipulated deadline to finish the construction. No bonus,
therefore, could have been possibly earned by ECI at that point
in time. The supposed liquidated damages for failure to finish
the project within the stipulated period or the opposite of the
claim for bonus is not clearly presented in the records of these
petitions. It is not shown that NAWASA imposed them.
As to the question of exemplary damages, we sustain the
appellate court in eliminating the same since it found that there
was no bad faith on the part of NPC and that neither can the
latter's negligence be considered gross. In   Dee Hua Liong
Electrical Equipment Corp. v. Reyes, (145 SCRA 713, 719) we
ruled:
Neither may private respondent recover exemplary damages
since he is not entitled to moral or compensatory damages, and
again because the petitioner is not shown to have acted in a
wanton, fraudulent, reckless or oppressive manner (Art. 2234,
Civil Code; Yutuk v. Manila Electric Co., 2 SCRA 377;
Francisco v. Government Service Insurance System, 7 SCRA
577; Gutierrez v. Villegas, 8 SCRA 527; Air France v.
Carrascoso, 18 SCRA 155; Pan Pacific (Phil.) v. Phil.
Advertising Corp., 23 SCRA 977; Marchan v. Mendoza, 24
SCRA 888).
We also affirm the reduction of attorney's fees from P50,000.00
to P30,000.00. There are no compelling reasons why we should
set aside the appellate court's finding that the latter amount
suffices for the services rendered by ECI's counsel.
WHEREFORE, the petitions in G.R. No. 47379 and G.R. No.
47481 are both DISMISSED for LACK OF MERIT. The
decision appealed from is AFFIRMED.
SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila
THIRD DIVISION 
G.R. No. 101683 February 23, 1995
LBC AIR CARGO, INC. FERNANDO M. YU and JAIME
TANO, petitioners, 

vs.

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

Rogelio Monterola P50,000.00
2. For Moral damages P20,000.00
To PATROCINIA GRONDIANO Y MONTEROLA:
3. Actual Damages P7,361.00
4. Hospitals & Burial Expenses 15,000.00
5. Attorneys' Fees and expenses

of Litigation 10,000.00
Plus the costs.
Actual payment of the aforementioned amounts should
however be reduced to twenty (20%) percent.1
In the instant petition for review, petitioners contend that —
1. The Court of Appeals erred in finding that Jaime Tano, Jr.
was negligent in the driving of his vehicle and in failing to give
a signal to approaching vehicles of his intention to make a left
turn.
2. The Court of Appeals erred in not finding that the proximate
cause of the accident was the victim's negligence in the driving
of his motorcycle in a very fast speed and thus hitting the
petitioner's cargo van.2
The issues raised are thus essentially factual. The intrinsic merit
of, as well as cogency in, the detailed analyses made by the
Court of Appeals in arriving at its findings is at once apparent.
Said the appellate court:
That visibility was poor when Jaime Tano made a left turn was
admitted by the latter.
Q When these two vehicles passed by your parked vehicle, as
you said, there were clouds of dust, did I get you right?
A Yes sir, the road was dusty.
Q So much so that you could no longer see the vehicles from
the opposite direction following these vehicles?
A It is not clear, sir, so I even turned on my left signal and the
headlight.
Q What do you mean by it was not clear, you could not see the
incoming vehicles?
A I could not see because of the cloud of dust.
Q And it was at this juncture, when you were to follow your
theory, when you started your LBC van again and swerved to
the left leading to the Bislig airport?
A I did not enter immediately the airport, I waited the dust to
clear a little before I drove.
Q In other words when you said that it was slightly clear, you
would like to tell the Honorable Court that you could only
clearly see big vehicles . . . but not small vehicles like a
motorcycle?
A I could see clearly big vehicles but not small vehicles like a
motorcycle.
Q Like the motorcycle of Rogelio Monterola?
A Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp.
26-30) (p. 15, Appellant's brief).
Tano should not have made a left turn under the conditions
admitted by him. Under the Land Transportation and Traffic
Code, the driver of any vehicle upon a highway, before starting,
stopping or turning from a direct line, is called upon to first see
that such movement can be made in safety, and whenever the
operation of any other vehicle approaching may be affected by
such movement, shall give a signal plainly visible to the driver
of such other vehicles of the intention to make such movement
(Sec. 44, R.A. 4136, as amended). This means that before a
driver turns from a direct line, in this case to the left, the driver
must first see to it that there are no approaching vehicles and, if
there are, to make the turn only if it can be made in safety, or at
the very least give a signal that is plainly visible to the driver of
such other vehicle. Tano did neither in this case, for he
recklessly made a left turn even as visibility was still very poor,
and thus failed to see the approaching motorcycle and warn the
latter, of his intention to make a left turn. This is plain and
simple negligence.
In thus making the left turn, he placed his vehicle directly at the
path of the motorcycle which, unaware of Tano's intention to
make a left turn, smashed at Tano's vehicle. It was Tano's
negligence that created the risk or the condition of danger that
set into operation the event that led to the smashedup and
untimely death of Rogelio Monterola.
Rogelio Monterola's motorcycle would not have hit the cargo
van had Tano, in operating it, not recklessly turned left when
visibility was still poor, and instead observed the direct line of
the Land Transportation Code that before doing so, he should
first see to it that such movement can be made in safety, and
that whenever any other vehicle approaching may be affected
by such movement, should give a signal plainly visible to the
driver of such other vehicle of the intention to make such
movement.
That Rogelio Monterola was running fast despite poor visibility
as evidenced by the magnitude of the damage to the vehicles is
no defense. His negligence would at most be contributory
(Article 2179, N.C.C.). Having negligently created the
condition of danger, defendants may not avoid liability by
pointing to the negligence of the former.
Tano's proven negligence created a presumption of negligence
on the part of his employer, the LBC Air Cargo Corporation, in
supervising its employees properly and adequately (Phoenix
Construction, Inc. vs. Intermediate Appellate Court,   supra),
which may only be destroyed by proof of due diligence in the
selection and supervision of his employees to prevent the
damage (Article 2180, N.C.C.). No such defense was
interposed by defendants in their answer.
We, however, fail to see Fernando Yu's liability as Manager of
LBC-Mangagoy Branch Office, there being no employer-
employee relationship between him and Jaime Tano who is a
driver of the LBC Air Cargo Inc. It was held in   Philippine
Rabbit Bus Lines Inc.   et al.   vs.   Phil.   American
Forwarders, Inc., 63 SCRA 231, that the term "Manager" in
Article 2180 is used in the sense of "employer." Hence, no
tortuous or quasi-delictual liability can be fastened on Fernando
Yu as branch manager of LBC Air Cargo Inc.
Now for the amount of damages. Aside from the indemnity for
death which has been pegged at P50,000.00 (Resolution   En
Banc, August 30, 1990, cited in People vs. Sazon, 189 SCRA
700), the evidence disclose that as a result of the accident,
Rogelio Monterola's motorcycle was damaged, the repair cost
of which amounted to P7,361.00 (Exh. E-1), for hospitalization,
wake and burial expenses, plaintiff spent P15,000.00. There is
likewise no question that by reason of Rogelio Monterola's
untimely death, his only child 14 years old Sherwin Monterola,
suffered mental anguish, fright, serious anxiety, wounded
feelings and moral shock that entitles him to moral damages
which we hereby fix at P20,000.00. Because of defendants'
refusal to indemnify the plaintiff for his father's death, the latter
was compelled to litigate and engage the services of counsel.
He is therefore entitled to an additional amount of P10,000.00
for attorney's fees and expenses of litigation.
Considering, however, the contributory negligence of Rogelio
Monterola in driving at a fast clip despite the fact that the road
was dusty, we reduce the aggregate amount of damages to
which the plaintiff is entitled by twenty per cent (Phoenix
Construction Inc. vs. Intermediate Appellate Court, Supra). 3
From every indication, the proximate cause of the accident was
the negligence of Tano who, despite extremely poor visibility,
hastily executed a left turn (towards the Bislig airport road
entrance) without first waiting for the dust to settle. It was this
negligent act of Tano, which had placed his vehicle (LBC van)
directly on the path of the motorcycle coming from the opposite
direction, that almost instantaneously caused the collision to
occur. Simple prudence required him not to attempt to cross the
other lane until after it would have been safe from and clear of
any oncoming vehicle.
Petitioners poorly invoke the doctrine of "last clear
chance" (also referred to, at times, as "supervening negligence"
or as "discovered peril"). The doctrine, in essence, is to the
effect that where both parties are negligent, but the negligent
act of one is appreciably later in time than that of the other, or
when it is impossible to determine whose fault or negligence
should be attributed to the incident, the one who had the last
clear opportunity to avoid the impending harm and failed to do
so is chargeable with the consequences thereof (see Picart vs.
Smith, 37 Phil. 809). Stated differently, the rule would also
mean that an antecedent negligence of a person does not
preclude the recovery of damages for supervening negligence
of, or bar a defense against the liability sought by, another if the
latter, who had the last   fair chance, could have avoided the
impending harm by the exercise of due diligence (Pantranco
North Express, Inc. vs. Baesa, 179 SCRA 384; Glan People's
Lumber and Hardware vs. Intermediate Appellate Court, 173
SCRA 464).
In the case at bench, the victim was traveling along the lane
where he was rightly supposed to be. The incident occurred in
an instant. No appreciable time had elapsed, from the moment
Tano swerved to his left to the actual impact; that could have
afforded the victim a last clear opportunity to avoid the
collision. It is true however, that the deceased was not all that Ltd., Defendant-Appellee,"  1  the dispositive portion of which
free from negligence in evidently speeding too closely behind declares:
the vehicle he was following. We, therefore, agree with the
WHEREFORE, except for a modification of the judgment in
appellate court that there indeed was contributory negligence
the sense that the award of P20,000.00 in favor of the plaintiff
on the victim's part that could warrant a mitigation of
shall be in the concept of nominal damages instead of
petitioners liability for damages.WHEREFORE, the appealed
exemplary damages, and that defendant China Air Lines, Ltd.
decision is AFFIRMED. Costs against petitioners. SO
shall likewise be liable with its two co-defendants in a joint and
ORDERED.
solidary capacity, the judgment appealed from is hereby
Republic of the Philippines
 affirmed in all other respects, without costs. 2
SUPREME COURT

The challenged decision of respondent court contains a
Manila
synthesis of the facts that spawned these cases and the
SECOND DIVISION  judgment of the court   a quo   which it affirmed with
modifications, thus:
G.R. No. 45985 May 18, 1990
On June 4, 1968, plaintiff Jose E. Pagsibigan, then Vice-
CHINA AIR LINES, LTD., petitioner, 
 President and General Manager of Rentokil (Phils.) Inc., a local
vs.
 firm dealing in insecticides, pesticides and related services
COURT OF APPEALS, JOSE PAGSIBIGAN, appurtenant thereto, purchased a plane ticket for a Manila-
PHILIPPINE AIR LINES, INC. and ROBERTO Taipei-Hongkong-Manila flight from the Transaire Travel
ESPIRITU, respondents. Agency. The said agency, through its Cecille Baron, contacted
the Manila Hotel branch of defendant Philippine Air Lines
REGALADO, J.: which at that time was a sales and ticketing agent of defendant
China Air lines. On June 6, 1968, PAL, through its ticketing
These consolidated petitions seek the review of the decision of clerk defendant Roberto Espiritu, cut and issued PAL Ticket
respondent court in CA-G.R. No. 53023-R entitled "Jose E. No. 01 7991 for a Manila-Taipei-Hongkong-Manila flight.
Pagsibigan, Plaintiff-Appellant, vs. Philippine Air Lines, Inc. According to the plane ticket, the plaintiff was booked on CAL
and Roberto Espiritu, Defendants-Appellants; China Air Lines,
CI Flight No. 812 to depart from Manila for Taipei on June 10,
1968 at 17:20 hours (5:20 p.m.), Exhibit A.
On June 10, 1968, one hour before the scheduled time of the
flight as stated in his ticket, the plaintiff arrived at the airport to
check in for CI Flight No. 812. Upon arriving at the airport, the
plaintiff was informed that the plane he was supposed to take
for Taipei had left at 10:20 in the morning of that day. The PAL
employees at the airport made appropriate arrangements for the
plaintiff to take PAL's flight to Taipei the following day, June
11, 1968. The plaintiff took said flight and arrived in Taipei
around noontime of the said date.
On July 8, 1968, the plaintiff, through counsel, made formal
demand on defendant PAL, for moral damages in not less than
P125,000.00 for what the plaintiff allegedly suffered as a result
of his failure to take the flight as stated in his plane ticket.
(Exhibit E) After a series of negotiations among the plaintiff,
PAL and CAL failed to reach an amicable settlement, the
plaintiff instituted this action in the Court of First Instance of
Rizal on September 22, 1969. In his complaint, plaintiff prays
for the recovery of P125,000.00 as moral damages and
P25,000.00 for and as attorney's fees. The moral damages
allegedly arose from the gross negligence of defendant Roberto
Espiritu in stating on the plane ticket that the time of departure
was 17:20 hours, instead of 10:20 hours which was the correct
time of departure in the revised summer schedule of CAL.
Plaintiff claims that by reason of his failure to take the plane, he
suffered besmirched reputation, embarrassment, mental
anguish, wounded feelings and sleepless nights, inasmuch as
when he went to the airport, he was accompanied by his
business associates, close friends and relatives. He further
averred that his trip to Taipei was for the purpose of conferring
with a certain Peng Siong Lim, President of the Union Taiwan
Chemical Corporation, scheduled at 9:00 a.m. on June 11,
1968.
Defendant Philippine Air Lines alleged in its answer that the
departure time indicated by Espiritu in the ticket was furnished
and confirmed by the reservation office of defendant China Air
Lines. It further averred that CAL had not informed PAL's
Manila Hotel Branch of the revised schedule of its flight, nor
provided it with revised timetable; that when the travel agency
sought to purchase the ticket for the plaintiff on CAL CI Flight
No. 812 for June 10, 1968, Espiritu who was then the ticketing
clerk on duty, checked with the reservation office of CAL on
the availability of space, the date and the time of said flight;
that CAL's Dory Chan informed Espiritu that the departure time
of Flight No. 812 on June 10, 1968 was at 5:20 in the afternoon
of said date. PAL asserted a cross-claim against CAL for
attorney's fees and for reimbursement of whatever amount the
court may adjudge PAL to be liable to the plaintiff. Defendant
Espiritu adopted the defenses of his co-defendant PAL.
Defendant China Air Lines, for its part, disclaims liability for
the negligence and incompetence of the employees of PAL. It
avers that it had revised its schedule since April 1, 1968, the
same to be effective on April 20, 1968, and the said revised
schedule was adopted only after proper petition with and
approval of the Civil Aeronautics Board of which all airlines,
including defendant PAL, were notified; that both printed
copies of the international timetable and of the mimeographed
notices of the official schedule and flight departure schedules
were distributed to all its sales agents, including PAL, that after
the effectivity of the new time schedules, PAL's Manila Hotel
office had been issuing and selling tickets based on the revised
time schedule; and that, assuming that the plaintiff is entitled to
recover damages, the liability is on PAL and not on CAL. A
cross-claim was likewise asserted by CAL against its co-
defendant PAL.
After due trial, the Court a quo rendered judgment laying the
blame for the erroneous entry in the ticket as to the time of
departure to defendant Roberto Espiritu, ticketing agent of
defendant PAL, and that no employee of CAL contributed to
such erroneous entry. It was further ruled that the plaintiff had
no reason to claim moral damages but may be entitled to
recover exemplary damages. The dispositive portion of the
decision makes the following adjudication:
WHEREFORE, premises considered, judgment is hereby
rendered sentencing the defendants Philippine Air Lines, Inc.
and Roberto Espiritu, to pay to plaintiff Jose Pagsibigan jointly
and severally, by way of exemplary damages, the sum of
Twenty Thousand Pesos (P20,000.00) plus Two Thousand
Pesos (P2,000.00) as reimbursement for attorney's fees and the
costs.
The complaint is dismissed with respect to the defendant China
Air Lines, Ltd. The cross-claim filed by defendant PAL and
Espiritu against defendant CAL as well as the cross-claim filed
by the defendant CAL against defendant PAL and Espiritu are
also hereby dismissed. 3
From said decision of the court below, all the parties, except
China Air Lines, Ltd. appealed to respondent court which,
however, sustained the ruling of the trial court denying
Pagsibigan's claim for moral damages. It concluded that
Roberto Espiritu did not act with malice or in bad faith in
making a wrong entry of the time of departure on the ticket, and
that the mistake committed by Espiritu appears to be an honest
one done in good faith.
Respondent court also ruled out the claim for exemplary
damages for lack of legal basis. Nonetheless, as earlier noted, it
awarded Pagsibigan P20,000.00 as nominal damages, under
Article 2221 of the Civil Code, for the vindication of a legal
wrong committed against him. As regards the liability of the
parties, respondent court held:
There can be little question as to the liability of PAL and
Espiritu for the damage caused to the plaintiff due to the
erroneous entry in the plane ticket made by the latter. They seek
to justify the erroneous statement as to the time of departure on
the ground that such was the time given by Dory Chan to
Espiritu when the latter called up for the reservation in favor of
plaintiff. Aside from the fact that Dory Chan had vigorously
disclaimed having given such information to Espiritu, We are
convinced that, as the trial court had found, CAL had no share
in the error committed by Espiritu in indicating the time of
departure of Flight No. 812. PAL had shown through the
testimony of Carmen Ibazeta Gallaga, ticket representative of
PAL at the Manila Hotel Office, that they received circulars and
timetables of airlines in the PAL main office. It further appears
that on two occasions, defendant PAL cut and issued tickets for
CAL based on the new schedule even before June 10, 1968. As
a matter of fact, the other entries of time departures in the ticket
issued to the plaintiff are in accordance with the revised
schedule, and that the only error therein was with respect to the
departure from Manila on June 10, 1968.
However, in proving that the fault lied with Espiritu, defendant
CAL derives no solace nor gains an advantage. It may not claim
exemption from liability by reason thereof. Espiritu was an
employee of PAL and whatever negligence was committed by
him is attributable to PAL. It is an admitted fact that PAL is an
authorized agent of CAL. In this relationship, the responsibility
of defendant PAL for the tortious act of its agent or
representative is inescapable. . . .
A similar principle is recognized in our Civil Code in its Art.
2180 . . . . Unlike in the doctrine of   respondeat superior,
however, the Civil Code permits the employer to escape this
liability upon proof of having observed all the diligence of a
good father of a family to prevent the damage.   We find the
evidence of defendant CAL to be insufficient to overcome the
presumption of negligence on its part for the act done by
defendant Roberto Espiritu. (Emphasis supplied)
The liability for the damage sustained by the plaintiff should,
therefore, be borne by all of the defendants in a joint and
solidary capacity (Art. 2194). The liability of an employer
under Art. 2180 is primary and direct. . . .
It appearing that defendant CAL, as employer or principal, did
not contribute to the negligence committed by defendants PAL
and Roberto Espiritu, its liability to the plaintiff could be
passed on to said defendants. Defendant CAL, however, did not
take an appeal and did not, therefore, take exception to the
dismissal of its cross-claim against defendants PAL and
Espiritu. This serves as an obstacle for a rendition of judgment
favorable to CAL on its said counterclaim. 4
In its petition for review on certiorari in G.R. No. L-45985,
petitioner China Air Lines, Ltd. (CAL) relied on the following
grounds:
1. A principal cannot be held liable, much less solidarily, for the
negligence of the sub-agent, where the former never
participated in, ratified or authorized the latter's act or omission.
2. Dismissal of the cross-claim of petitioner against the private
respondents Philippine Air Lines, Inc. and Roberto Espiritu will
not prevent the release of the petitioner from liability to the
private respondent Pagsibigan.
3. The award of damages was unwarranted both legally and
factually. 5
On their part, petitioners Philippine Air Lines, Inc. (PAL) and
Roberto Espiritu made the following submissions in G.R. No.
L-46036, to wit:
1. The respondent Court of Appeals erred in not holding that
respondent China Air Lines, Ltd., being the principal, is solely
liable to respondent Pagsibigan.
2. The respondent Court of Appeals erred in awarding
respondent Pagsibigan the sum of P20,000.00 as nominal
damages. 6
In G.R. No. L-45985, respondent Pagsibigan contends, by way
of refutation, that CAL's liability is based on breach of contract
of transportation which was the proximate result of the
negligence and/or error committed by PAL and Espiritu; that
even assuming that CAL has no share in the negligence of PAL
and Espiritu, the liability of CAL does not cease upon proof
that it exercised all the diligence of a good father of a family in
the selection and supervision of its employees. Traversing such
contentions, CAL argues that it can not be made liable under
Article 2180 of the Civil Code because of the absence of
employer-employee relationship between it and PAL.
On the other hand, in G.R. No. L-46036, respondent Pagsibigan
claims that PAL is liable under Article 1909 of the said code
which holds an agent responsible not only for fraud but also for
negligence which shall be judged with more or less rigor by the
courts, according to whether the agency was or was not for a
compensation. PAL, however, maintains that for lack of privity
with Pagsibigan, the suit for breach of contract should have
been directed against CAL.
What surfaces as a procedural maneuver taken by respondent
Pagsibigan in the course of the proceedings in these cases has
confused the real issues in the controversy subject of both
petitions before us.
Respondent Pagsibigan has opted to seek redress by pursuing
two remedies at the same time, that is, to enforce the civil
liability of CAL for breach of contract and, likewise, to recover
from PAL and Espiritu for tort or culpa aquiliana. What he has
overlooked is the proscription against double recovery under
Article 2177 of the Civil Code which, while not preventing
recourse to any appropriate remedy, prevents double relief for a
single wrong.
To avoid inequitable effects under such confluence of remedies,
the true nature of the action instituted by respondent Pagsibigan
must be determined. A careful perusal of the complaint of
respondent Pagsibigan will readily disclose that the allegations
thereof clearly and unmistakably make out a case for a quasi-
delict in this wise:
4. That at all pertinent times particularly in June of 1968,
defendant China Air Lines Ltd. has been operating regular
scheduled flights to and from Manila, and has offered
accommodations thereon through, among others, defendant
PAL as its authorized sales agent and/or ticketing agent, such
that China Airlines Ltd. is here impleaded as being the principal
of defendant PAL;
5. That at all pertinent times, particularly in June of 1968,
defendant Roberto Espiritu has been in the employ of defendant
PAL at its sales counter at the PAL Manila Hotel branch office
and is here impleaded as defendant as being the   proximate
malfeasor in this cause of action;
12. That plaintiff missed the initial Manila-Taipei leg (CI Flight
812) on June 10, 1968, as set forth in his ticket (Annex
"A") solely and exclusively by reason of gross incompetence
and inexcusable negligence   amounting to bad faith of
defendant PAL — acting, through its sales representative, the
defendant Roberto Espiritu, of its Manila Hotel branch office
— in the discharge of its duties as sales agent and/or ticketing
agent for defendant China Airlines Ltd. as principal.
13. That as a   direct result of culpable incompetence and
negligence of defendant Roberto Espiritu as sales representative
of defendant PAL, plaintiff was unable to attend to previously
scheduled business commitments in Taipei . . . resulting in
direct and indirect prejudice to plaintiff that has yet to be fully
assessed; (Emphasis supplied) 7
Had the intention of respondent Pagsibigan been to maintain an
action based on breach of contract of carriage, he could have
sued CAL alone considering that PAL is not a real party to the
contract. Moreover, in cases of such nature, the aggrieved party
does not have to prove that the common carrier was at fault or
was negligent. All he has to prove is the existence of the
contract and the fact of its non-performance by the carrier. 8
The records disclose that the trial court delved much into the
issues of who was at fault, and its decision is primarily
anchored on its factual findings regarding the civil liability
arising from culpa aquiliana of the erring party, to this effect:
Plaintiff said that the erroneous entry in his ticket which made
it appear that his CAL flight of June 10, 1968 was to be at 5:20
in the afternoon was due to the fault or negligence of PAL's
Roberto Espiritu, a co-defendant herein, as well as the
employees of the defendant CAL. In making CAL co-
responsible, plaintiff appears to rely on the doctrine that the
principal is responsible for the act of an agent done within the
scope of the agency.
There is no proof extant that any of the employees of PAL had
contributed to the erroneous entry in plaintiffs PAL ticket for
Taipei which placed his time of departure to 5:20 o'clock in the
afternoon of June 10, 1968. Only defendant Roberto Espiritu
appears to be solely and exclusively responsible for such error
and therefor the conclusion becomes inevitable that CAL must
be absolved from any blame because defendant Roberto
Espiritu who committed the error is not an employee or agent
of the defendant CAL. 9
It, therefore, becomes evident that respondent Pagsibigan,
having sensed that he can not hold CAL liable on a   quasi-
delict, decided on appeal to instead make a sinistral detour, so
to speak, by claiming that his action against CAL is based on a
breach of contract of carriage.
We can not permit respondent Pagsibigan to change his theory
at this stage; it would be unfair to the adverse party who would
have no more opportunity to present further evidence, material
to the new theory, which it could have done had it been aware
earlier of the new theory at the time of the hearing before the
trial court. 10
There is indeed no basis whatsoever to hold CAL liable on
a quasi-delict or culpa aquiliana. As hereinbefore stated, the
court   a quo   absolved CAL   of any liability for fault or
negligence. This finding was shared by respondent court when
it concluded that defendant CAL did not contribute to the
negligence committed by therein defendants-appellants PAL
and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred from
proving that it observed due diligence in the selection and
supervision of its employees. This argument is obviously
misplaced. CAL is not the employer of PAL or Espiritu.
In Duavit vs. The Hon. Court of Appeals, et al.,  11  we have
stressed the need of first establishing the existence of an
employer-employee relationship before an employer may be
vicariously liable under Article 2180 of the Civil Code.
With respect to PAL and Espiritu, they disclaim any liability on
the theory that the former is merely an agent of CAL and that
the suit should have been directed against CAL alone. There is
no question that the contractual relation between both airlines is
one of agency. Suffice it to say, however, that in an action
premised on the employee's negligence, whereby respondent
Pagsibigan seeks recovery for the resulting damages from both
PAL and Espiritu without qualification, what is sought to be
imposed is the direct and primary liability of PAL as an
employer under said Article 2180.
When an injury is caused by the negligence of an employee,
there instantly arises a presumption of law that there was
negligence on the part of the employer either in the selection of
the employee or in the supervision over him after such
selection. The presumption, however, may be rebutted by a
clear showing on the part of the employer that it has exercised
the care and diligence of a good father of a family in the
selection and supervision of his employee. 12
Hence, to escape solidary liability for the   quasi-
delict committed by Espiritu, it is imperative that PAL must
adduce sufficient proof that it exercised such degree of care.
PAL failed to overcome the presumption. As found by
respondent court, CAL had revised its schedule of flights since
April 1, 1968; that after the Civil Aeronautics Board had
approved the revised schedule of flights, PAL was duly
informed thereof and, in fact, PAL's Manila Hotel branch office
had been issuing and selling tickets based on the revised time
schedule before June 10, 1968.
PAL's main defense is that it is only an agent. As a general
proposition, an agent who duly acts as such is not personally
liable to third persons. However, there are admitted exceptions,
as in this case where the agent is being sued for damages
arising from a tort committed by his employee.
The respondent court found that the mistake committed by
Espiritu was done in good faith. While there is no evidence that
he acted with malice, we can not entirely condone his
actuations. As an employee of PAL, the nature of his functions
requires him to observe for the protection of the interests of
another person that degree of care, precaution and vigilance
which the circumstances justly demand. He committed a clear
neglect of duty. Ergo, for his negligence, Espiritu is primarily
liable to respondent Pagsibigan under Article 2176 of the Civil
Code. For the failure of PAL to rebut the legal presumption of
negligence in the selection and supervision of its employee, it is
also primarily liable under Article 2180 of the same code which
explicitly provides that employers shall be liable for the
damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
Under the aforesaid provision, all that is required is that the
employee, by his negligence, committed a   quasi-delictwhich
caused damage to another, and this suffices to hold the
employer primarily and solidarity responsible for the tortious
act of the employee. PAL, however, can demand from Espiritu
reimbursement of the amount which it will have to pay the
offended party's claim. 13
On the issue of damages, we agree, except as to the amount,
that nominal damages may be awarded to respondent
Pagsibigan to vindicate the legal wrong committed against him.
It appearing that the wrong committed was immediately
rectified when PAL promptly booked him for the next
morning's flight to Taipei where he arrived before noon of June
11, 1968 and was able to attend his scheduled conference, and
considering the concept and purpose of nominal damages, the
award of P20,000.00 must accordingly be reduced to an amount
equal or at least commensurate to the injury sustained.
WHEREFORE, the decision of respondent Court of Appeals is
MODIFIED accordingly. China Air Lines, Ltd. is hereby
absolved from liability. Philippine Air Lines, Inc. and Roberto
Espiritu are declared jointly and severally liable to pay the sum
of P10,000.00 by way of nominal damages, without prejudice
to the right of Philippine Air Lines, Inc. to recover from
Roberto Espiritu reimbursement of the damages that it may pay
respondent Jose Pagsibigan. SO ORDERED.
 Republic of the Philippines
 if any one should be held liable for the death of Isidoro
SUPREME COURT
 Caperina, he is Dante Capuno and not his father Delfin because
Manila
EN BANC
G.R. No. L-10134             June 29, 1957
SABINA EXCONDE, plaintiff-appellant, 
 appeal only involves questions of law. It appears that Dante
vs.
 Capuno was a member of the Boy Scouts Organization and a
DELFIN CAPUNO and DANTE CAPUNO, defendants-
appellees.
BAUTISTA ANGELO, J.:
Dante Capuno, son of Delfin Capuno, was accused of double
homicide through reckless imprudence for the death of Isidoro
Caperina and Amado Ticzon on March 31, 1949 in the Court of
First Instance of Laguna (Criminal Case No. 15001). During
the trial, Sabina Exconde, as mother of the deceased Isidoro
Caperina, reserved her right to bring a separate civil action for
damages against the accused. After trial, Dante Capuno was
found guilty of the crime charged and, on appeal, the Court
Appeals affirmed the decision. Dante Capuno was only (15)
years old when he committed the crime.
In line with her reservation, Sabina Exconde filed the present
action against Delfin Capuno and his son Dante Capuno asking
for damages in the aggregate amount of P2,959.00 for the death
of her son Isidoro Caperiña. Defendants set up the defense that
at the time of the accident, the former was not under the
control, supervision and custody, of the latter. This defense was
sustained by the lower court and, as a consequence it only
convicted Dante Capuno to pay the damages claimed in the
complaint. From decision, plaintiff appealed to the Court of
Appeals but the case was certified to us on the ground that the
student of the Bilintawak Elementary School situated in a
barrio in the City of San Pablo and on March 31, 1949 he
attended a parade in honor of Dr. Jose Rizal in said city upon
instruction of the city school's supervisor. From the school
Dante, with other students, boarded a jeep and when the same
started to run, he took hold of the wheel and drove it while the
driver sat on his left side. They have not gone far when the jeep
turned turtle and two of its passengers, Amado Ticzon and
Isidore Caperiña, died as a consequence. It further appears that
Delfin Capuno, father of Dante, was not with his son at the time
of the accident, nor did he know that his son was going to
attend a parade. He only came to know it when his son told him
after the accident that he attended the parade upon instruction
of his teacher. The only issue involved in this appeal is whether
defendant Delfin Capuno can be held civilly liable, jointly and
severally with his son Dante, for damages resulting from the
death of Isidoro Caperiña caused by the negligent act of minor
Dante Capuno. The case comes under Article 1903 of the
Spanish Civil Code, paragraph 1 and 5, which provides:
ART. 1903. The obligation impossed by the next preceding
articles is enforceable not only for personal acts and omissions,
but also for those of persons for whom another is responsible.
The father, and, in case of his death or incapacity, the mother,
are liable for any damages caused by the minor children who
live with them. Finally, teachers or directors of arts and trades
are liable for any damages caused by their pupils or apprentices
while they are under their custody. Plaintiff contends that
defendant Delfin Capuno is liable for the damages in question
jointly and severally with his son Dante because at the time the
latter committed the negligent act which resulted in the death of
the victim, he was a minor and was then living with his father,
and inasmuch as these facts are not disputed, the civil liability
of the father is evident. And so, plaintiff contends, the lower
court erred in relieving the father from liability.
We find merit in this claim. It is true that under the law above
quoted, "teachers or directors of arts and trades are liable for
any damages caused by their pupils or apprentices while they
are under their custody", but this provision only applies to an
institution of arts and trades and not to any academic
educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV, p.
841; See 12 Manresa, 4th Ed., p. 557). Here Dante capuno was
then a student of the Balintawak Elementary School and as part
of his extra-curricular activity, he attended the parade in honor
of Dr. Jose Rizal upon instruction of the city school's
supervisor. And it was in connection with that parade that Dante
boarded a jeep with some companions and while driving it, the
accident occurred. In the circumstances, it is clear that neither
the head of that school, nor the city school's supervisor, could
be held liable for the negligent act of Dante because he was not
then a student of an institute of arts and trades as provided by
law.
The civil liability which the law impose upon the father, and, in
case of his death or incapacity, the mother, for any damages that
may be caused by the minor children who live with them, is
obvious. This is necessary consequence of the parental
authority they exercise over them which imposes upon the
parents the "duty of supporting them, keeping them in their
company, educating them and instructing them in proportion to
their means", while, on the other hand, gives them the "right to
correct and punish them in moderation" (Articles 154 and 155,
Spanish Civil Code). The only way by which they can relieve
themselves of this liability is if they prove that they exercised
all the diligence of a good father of a family to prevent the
damage(Article 1903, last paragraph, Spanish Civil Code). This
defendants failed to prove.
WHEREFORE, the decision appealed from is modified in the
sense that defendants Delfin Capuno and Dante Capuno shall
pay to plaintiff, jointly and severally, the sum of P2,959.00 as
damages, and the costs of action.
 Republic of the Philippines
 registered in the name of FMLFC and driven by one Crispin
SUPREME COURT
 Sicat.
Manila
The evidence shows that while Vitug's car was at a full stop at
SECOND DIVISION  the intersection of New York Street and Epifanio delos Santos
Avenue (EDSA) in Cubao, Quezon City, northward-bound, the
G. R. No. 91378 June 9, 1992 on-coming Isuzu cargo truck bumped, a Ford Granada car
behind him with such force that the Ford car was thrown on top
FIRST MALAYAN LEASING AND FINANCE of Vitug's car crushing its roof. The cargo truck thereafter
CORPORATION, petitioner, 
 struck Vitug's car in the rear causing the gas tank to explode
vs.
 and setting the car ablaze.
THE HON. COURT OF APPEALS, CRISOSTOMO B.
VITUG and ESTATE OF VICENTE TRINIDAD, Stunned by the impact. Vitug was fortunately extricated from
Represented by Widow GLORIA D. his car by solicitous bystanders before the vehicle exploded.
TRINIDAD, respondents. However, two of his passengers were burned to death. Vitug's
car, valued at P70,000, was a total loss.
GRIÑO-AQUINO. J.:
When he regained consciousness in the hospital, Vitug
This case brings to the fore the importance of motor vehicle discovered that he had lost various personal articles valued at
registration in determining who should be liable for the death or P48,950, namely a necklace with a diamond pendant, a GP
injuries suffered by passengers or third persons as a watch, a pair of Christian Dior eyeglasses. a gold Cross pen and
consequence of the operation of a motor vehicle. a pair of Bally shoes. Vitug also suffered injuries producing
recurring pains in his neck and back. Upon his physician's
On June 26, 1984, Crisostomo B. Vitug filed Civil Case No. advice, he received further medical treatment in the United
84-25186 in the Regional Trial Court of Manila. Branch XLIII, States which cost him US$2,373.64 for his first trip, and
against the defendant. First Malayan Leasing and Finance US$5,596.64 for the second. At the time of the accident on
Corporation (FMLFC for short), to recover damages for December 14, 1983, the Isuzu cargo truck was registered in the
physical injuries, loss of personal effects, and the wreck of his name of the First Malayan Leasing and Finance Corporation
car as a result of a three-vehicle collision on December 14, (FMLFC).
1983. involving his car, another car, and an Isuzu cargo truck
However, FMLFC denied any liability, alleging that it was not
the owner of the truck. neither the employer of the driver
Crispin Sicat, because it had sold the truck to Vicente Trinidad
on September 24. 1980, after the latter had paid all his monthly
amortizations under the financing lease agreement between
FMLFC and Trinidad.
On FMLFC's motion, the lower court granted FMLFC's leave
to file a third-party complaint against Trinidad and admitted the
third-party complaint filed therewith.
Answering the third-party complaint the Estate of Vicente
Trinidad admitted that the truck was operated by the deceased
during his lifetime. Nevertheless it raised the defense that the
estate of Vicente Trinidad was no longer existing because the
same had long been settled and partitioned extra judicially by
his heirs.
On August 25, 1986, the trial court rendered a decision
sentencing FMLFC to pay Vitug the sum of P133,950 with
interest at the legal rate from the filing of the complaint until
fully paid, plus the sum of P10,000 as attorneys fees and costs.
FMLFC appealed in due time to the Court of Appeals which
rendered a decision on November 27, 1989 modifying the
appealed judgment by ordering the third-party defendant-
appellee (Estate of Vicente Trinidad) to indemnify the
appellant, FMLFC, for whatever amount the latter may pay
Vitug under the judgment. In all other respects, the trial court's
decision was affirmed.
FMLFC has filed this petition for review on certiorari praying
that the decision of the appellate court be reversed and set
aside.
On February 14, 1990, the Court dismissed the petition for
insufficiency in form and substance, having failed to comply
with the Rules of Court and Circular 1-88 requiring the
submission of (1) proof of service of the petition on the adverse
party, and (2) a certified true copy of the decision of the Court
of Appeals. Moreover, the petition was filed late on February 1,
1990, the due date being January 27, 1990.
The petitioner filed a motion for reconsideration. On April 16,
1990. we granted the same and reinstated the petition. Without
giving it due course, we required the respondents to comment.
After deliberating on the petition, the comments of the private
respondents and the petitioner's reply thereto, we find the
petition to be bereft of merit, hence, resolved to deny it.
In the first place, the factual finding of the trial court and the
Court of Appeals that the Isuzu vehicle which figured in the
mishap was still registered in the name of FMLFC at the time
of the accident is not reviewable by this Court in a petition
for certiorari under Rule 45 of Rules of Court.
This Court has consistently ruled that regardless of who
the actual owner of a motor vehicle might be, the registered
owner is the operator of the same with respect to the public and
third persons, and as such, directly and primarily responsible
for the consequences of its operation. In contemplation of law,
the owner/operator of record is the employer of the driver, the
actual operator and employer being considered merely as his
agent (MYC-Agro-Industrial Corporation vs. Vda. de Caldo,
132 SCRA 10. citing Vargas vs. Langcay. 6 SCRA 174; Tamayo
vs. Aquino. 105 Phil. 949).
We believe that it is immaterial whether or not the driver was
actually employed by the operator of record. It is even not
necessary to prove who the actual owner of the vehicle and the
employer of the driver is. Granting that, in this case, the father
of the driver is the actual owner and that he is the actual
employer, following the well-settled principle that the operator
of record continues to be the operator of the vehicle in
contemplation of law, as regards the public and third persons,
and as such is responsible for the consequences incident to its
operation we must hold and consider such owner-operator of
record as the employer, in contemplation of law, of the driver.
And, to give effect to this policy of law as enunciated in the
above cited decisions of this Court, we must now extend the
same and consider the actual operator and employer as the
agent of the operator of record." (Vargas vs. Langcay, 6 SCRA
178; citing Montoya vs. Ignacio, G.R. No. L-5868, Dec. 29,
1953; Timbol vs. Osias, G.R. No. L-7547, April 30, 1955; Vda.
de Medina vs. Cresencia, G.R. No. L-8194, July 11, 1956;
Necesito vs. Paras, G.R. No. L10605, June 30, 1955.)
. . . Were the registered owner allowed to evade responsibility
by proving who the supposed transferee or owner is, it would
be easy for him by collusion with others or otherwise, to escape
said responsibility and transfer the same to an indefinite person,
or to one who possesses no property with which to respond
financially for the damage or injury done (Erezo vs. Jepte, 102
Phil 103.)
. . . The registered owner or operator of record is the one liable
for damages caused by a vehicle regardless of any alleged sale
or lease made thereon." (MYC-Agro- Industrial Corp. vs. Vda.
de Caldo, 132 SCRA 11.)
In order for a transfer of ownership of a motor vehicle to be
valid against third persons. it must be recorded in the Land
Transportation Office. For, although valid between the parties,
the sale cannot affect third persons who rely on the public
registration of the motor vehicle as conclusive evidence of
ownership. In law, FMLFC was the owner and operator of the
Izusu cargo truck, hence, fully liable to third parties injured by
its operation due to the fault or negligence of the driver thereof.
WHEREFORE, the petition for review is DENIED for lack of
merit. Costs against the petitioner. SO ORDERED.
 Republic of the Philippines
 Defendant Bienvenido Gelisan is the owner of a freight truck
SUPREME COURT
 bearing plate No. TH-2377. On January 31, 1962, defendant
Manila Bienvenido Gelisan and Roberto Espiritu entered into a
contract marked Exhibit 3-Gelisan under which Espiritu hired
SECOND DIVISION the same freight truck of Gelisan for the purpose of hauling
rice, sugar, flour and fertilizer at an agreed price of P18.00 per
G.R. No. L-30212 September 30, 1987 trip within the limits of the City of Manila provided the loads
shall not exceed 200 sacks. It is also agreed that Espiritu shall
BIENVENIDO GELISAN, petitioner, 
 bear and pay all losses and damages attending the carriage of
vs.
 the goods to be hauled by him. The truck was taken by a driver
BENITO ALDAY, respondent. of Roberto Espiritu on February 1, 1962. Plaintiff Benito Alday,
a trucking operator, and who owns about 15 freight trucks, had
known the defendant Roberto Espiritu since 1948 as a truck
PADILLA, J.:
operator. Plaintiff had a contract to haul the fertilizers of the
Review on certiorari of the judgment * rendered by the Court of Atlas Fertilizer Corporation from Pier 4, North Harbor, to its
Appeals, dated 11 October 1968, as amended by its resolution, Warehouse in Mandaluyong. Alday met Espiritu at the gate of
dated 11 February 1969, in CA-G.R. No. 32670-R, entitled: Pier 4 and the latter offered the use of his truck with the driver
"Benito Alday, plaintiff-appellant, vs. Roberto Espiritu and and helper at 9 centavos per bag of fertilizer. The offer was
Bienvenido Gelisan, defendants-appellees," which ordered the accepted by plaintiff Alday and he instructed his checker Celso
herein petitioner Bienvenido Gelisan to pay, jointly and Henson to let Roberto Espiritu haul the fertilizer. Espiritu made
severally, with Roberto Espiritu, the respondent Benito Alday
two hauls of 200 bags of fertilizer per trip. The fertilizer was
the amount of P5,397.30, with. legal interest thereon from the
filing of the complaint, and the costs of suit; and for the said delivered to the driver and helper of Espiritu with the necessary
Roberto Espiritu to pay or refund the petitioner Bienvenido way bill receipts, Exhibits A and B. Espiritu, however, did not
Gelisan whatever amount the latter may have paid to the deliver the fertilizer to the Atlas Fertolizer bodega at
respondent Benito Alday by virtue of the judgment. Mandaluyong. The signatures appearing in the way bill receipts
Exhibits A and B of the Alday Transportation admittedly not the
The uncontroverted facts of the case are, as follows: signature of any representative or employee of the Atlas
Fertilizer Corporation. Roberto Espiritu could not be found, and
plaintiff reported the loss to the Manila Police Department.
Roberto Espiritu was later arrested and booked for theft. ...
Subsequently, plaintiff Aiday saw the truck in question on Sto.
Cristo St. and he notified the Manila Police Department, and it
was impounded by the police. It was claimed by Bienvenido
Gelisan from the Police Department after he had been notified
by his employees that the truck had been impounded by the
police; but as he could not produce at the time the registration
papers, the police would not release the truck to Gelisan. As a
result of the impounding of the truck according to Gelisan, ...
and that for the release of the truck he paid the premium of
P300 to the surety company. 1
Benito Alday was compelled to pay the value of the 400 bags of
fertilizer, in the amount of P5,397.33, to Atlas Fertilizer
Corporation so that, on 12 February 1962, he (Alday) filed a
complaint against Roberto Espiritu and Bienvenido Gelisan
with the Court of First Instance of Manila, docketed therein as
Civil Case No. 49603, for the recovery of damages suffered by
him thru the criminal acts committed by the defendants.
The defendant, Roberto Espiritu failed to file an answer and
was, accordingly, declared in default.
The defendant, Bienvenido Gelisan, upon the other hand,
disowned responsibility. He claimed that he had no contractual
relations with the plaintiff Benito Alday as regards the hauling
and/or delivery of the 400 bags of fertilizer mentioned in the
complaint; that the alleged misappropriation or nondelivery by
defendant Roberto Espiritu of plaintiff's 400 bags of fertilizer,
was entirely beyond his (Gelisan's) control and knowledge, and
which fact became known to him, for the first time, on 8
February 1962 when his freight truck, with plate No. TH-2377,
was impounded by the Manila Police Department, at the
instance of the plaintiff; and that in his written contract of hire
with Roberto Espiritu, it was expressly provided that the latter
will bear and pay all loss and damages attending the carriage of
goods to be hauled by said Roberto Espiritu.
After trial, the Court of First Instance of Manila ruled that
Roberto Espiritu alone was liable to Benito Alday, since
Bienvenido Gelisan was not privy to the contract between
Espiritu and Alday. The dispositive portion of the decision
reads, as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendant Roberto Espiritu for the sum
of P6,000 with interest at the legal rate from the time of the
filing of the complaint, and the costs of the suit. Plantiff's
complaint is dismissed with respect to defendant Bienvenido
Gelisan, and judgment is rendered in favor of defendant
Bienvenido Gelisan and against the plaintiff for the sum of
P350. 2
On appeal, however, the Court of Appeals, citing the case
of   Montoya vs. Ignacio,   3   found that Bienvenido Gelisan is
likewise liable for being the registered owner of the truck; and
that the lease contract, executed by and between Bienvenido
Gelisan and Roberto Espiritu, is not binding upon Benito Alday
for not having been previously approved by the Public Service
Commission. Accordingly, it sentenced Bienvenido Gelisan to
pay, jointly and severally with Roberto Espiritu, Benito Alday
the amount of P5,397.30, with legal interest thereon from the
filing of the complaint; and to pay the costs. Roberto Espiritu,
in turn, was ordered to pay or refund Bienvenido Gelisan
whatever amount the latter may have paid to Benito Alday by
virtue of the judgment. 4
Hence, the present recourse by Bienvenido Gelisan.
The petition is without merit. The judgment rendered by the
Court of Appeals, which is sought to be reviewed, is in accord
with the facts and the law on the case and we find no cogent
reason to disturb the same. The Court has invariably held in
several decisions that the registered owner of a public service
vehicle is responsible for damages that may arise from
consequences incident to its operation or that may be caused to
any of the passengers therein. 5 The claim of the petitioner that
he is not hable in view of the lease contract executed by and
between him and Roberto Espiritu which exempts him from
liability to third persons, cannot be sustained because it appears
that the lease contract, adverted to, had not been approved by
the Public Service Commission. It is settled in our
jurisprudence that if the property covered by a franchise is
transferred or leased to another without obtaining the requisite
approval, the transfer is not binding upon the public and third
persons. 6
We also find no merit in the petitioner's argument that the rule
requiring the previous approval by the Public Service
Commission, of the transfer or lease of the motor vehicle, may
be applied only in cases where there is no positive
Identification of the owner or driver, or where there are very
scant means of Identification, but not in those instances where
the person responsible for damages has been fixed or
determined beforehand, as in the case at bar. The reason for the
rule we reiterate in the present case, was explained by the Court
in Montoya vs. Ignacio, 7 thus:
There is merit in this contention. The law really requires the
approval of the Public Service Commission in order that a
franchise, or any privilege pertaining thereto, may be sold or
leased without infringing the certificate issued to the grantee.
The reason is obvious. Since a franchise is personal in nature
any transfer or lease thereof should be notified to the Public
Service Commission so that the latter mav take proper
safeguards to protect the interest of the public. In fact, the law
requires that, before the approval is granted, there should be a
public hearing, with notice to all interested parties, in order that
the Commission may determine if there are good and
reasonable grounds justifying the transfer or lease of the
property covered by the franchise, or if the sale or lease is
detrimental to public interest. Such being the reason and
philosophy behind this requirement, it follows that if the
property covered by the franchise is transferred, or leased to
another without obtaining the requisite approval, the transfer is
not binding against the Public Service Commission and in
contemplation of law the grantee continues to be responsible
under the franchise in relation to the Commission and to the
Public. Since the lease of the jeepney in question was made
without such approval the only conclusion that can be drawn is
that Marcelino Ignacio still continues to be its operator in
contemplation of law, and as such is responsible for the
consequences incident to its operation, one of them being the
collision under consideration.
Bienvenido Gelisan, the registered owner, is not however
without recourse. He has a right to be indemnified by Roberto
Espiritu for the amount titat he may be required to pay as
damages for the injury caused to Benito Alday, since the lease
contract in question, although not effective against the public
for not having been approved by the Public Service
Commission, is valid and binding between the contracting
parties. 8
We also find no merit in the petitioner's contention that his
liability is only subsidiary. The Court has consistently
considered the registered owner/operator of a public service
vehicle to be jointly and severally liable with the driver for
damages incurred by passengers or third persons as a
consequence of injuries sustained in the operation of said
vehicles. Thus, in the case of Vargas vs. Langcay,  9  the Court
said:
We hold that the Court of Appeals erred in considering
appellant-petitioner Diwata Vargas only subsidiarily liable
under Article 103 of the Revised Penal Code. This court, in
previous decisions, has always considered the registered owner/
operator of a passenger vehicle, jointly and severally liable with
the driver, for damages incurred by passengers or third persons
as a consequence of injuries (or death) sustained in the
operation of said vehicles. (Montoya vs. Ignacio, 94 Phil., 182;
Timbol vs. Osias, G.R. No. L-7547, April 30, 1955; Vda. de
Medina vs. Cresencia, 99 Phil., 506; Necesito vs. Paras, 104
Phil., 75; Erezo vs. Jepte, 102 Phil., 103; Tamayo vs. Aquino
and Rayos vs Tamayo, 105 Phil., 949; 56 Off. Gaz. [36] 5617.)
In the case of Erezo vs. Jepte, Supra, We held:
* * * In synthesis, we hold that the registered owner, the
defendant-appellant herein, is primarily responsible for the
damage caused * * * (Emphasis supplied)
In the case of Tamayo vs. Aquino, supra, We said:
* * * As Tamayo is the registered owner of the truck, his
responsibffity to the public or to any passenger riding in the
vehicle or truck must be direct * * * (Emphasis supplied)
WHEREFORE, the petition is hereby DENIED. With costs
against the petitioner.
SO ORDERED.