HIDALGO

ENTERPRISES,
INC.
vs.
GUILLERMO
BALANDAN, ANSELMA ANILA and THE COURT OF
APPEALS
Facts: Hidalgo Enterprises, Inc. "was the owner of an ice-plant
factory where two tanks full of water, nine feet deep, for cooling
purposes of its engine were installed. While the factory
compound was surrounded with fence, the tanks themselves
were not provided with any kind of fence or top covers. The
edges of the tanks were barely a foot high from the surface of
the ground. Through the wide gate entrance, which is
continually open, motor vehicles hauling ice and persons
buying said commodity passed, and any one could easily enter
the said factory. There was no guard assigned on the gate. At
about noon of April 16, 1948, plaintiff's son, Mario Balandan,
while playing with and in company of other boys of his age
entered the factory premises through the gate, to take a bath in
one of said tanks; and while bathing, Mario sank to the bottom
of the tank, to be fished out later, already a cadaver, having
been died of "asphyxia secondary to drowning."

SOFIA FERNANDO, in her behalf and as the legal guardian

of
her
minor
children,
, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF
DAVAO, respondents.

FACTS:
1)

November 7, 1975: Bibiano Morta, market master of

the Agdao Public Market filed a requisition request
with the Chief of Property of the City Treasurer's
Office for the re-emptying of the septic tank in Agdao
wherein Bascon won

2)

November 22, 1975: bidder Bertulano with four other

companions namely Joselito Garcia, William Liagoso,
Alberto Fernando and Jose Fajardo, Jr. were found
dead inside the septic tank.

3)

The bodies were removed by a fireman.

CFI & CA - petitioner maintained an attractive nuisance (the

tanks), and neglected to adopt the necessary precautions to
avoid accidents to persons entering its premises

4)

The body of Joselito Garcia, was taken out by his

uncle, Danilo Garcia and taken to the Regional
Hospital but he died there.

Issue: Is a swimming pool or water tank an instrumentality or

appliance likely to attract the little children in play? In other
words is the body of water an attractive nuisance?

5)

The City Engineer's office investigated the case and

learned
they
entered
the
septic
tank
without clearance from it nor with the knowledge and
consent of the market master.

6)

Since the septic tank was found to be almost empty,

they were presumed to be the ones who did the reemptying.

7)

Dr. Juan Abear of the City Health Office found them to

have died from "asphyxia" - diminution of oxygen
supply in the body and intake of toxic gas

8)

November 26, 1975: Bascon signed the purchase

order

Ruling: Appealed decision is reversed and the Hidalgo

Enterprises, Inc. is absolved from liability. No costs.
Ration: No. Petitioner's tanks are not classified as attractive
nuisance. The great majority of American decisions say no.
The attractive nuisance doctrine generally is not applicable to
bodies of water, artificial as well as natural, in the absence of
some unusual condition or artificial feature other than the mere
water and its location. There are numerous cases in which the
attractive nuisance doctrine has not been held not to be
applicable to ponds or reservoirs, pools of water, streams,
canals, dams, ditches, culverts, drains, cesspools or sewer
pools.
The reason why a swimming pool or pond or reservoir of water
is not considered an attractive nuisance was lucidly explained
by the Indiana Appellate Court as follows:
Nature has created streams, lakes and pools which attract
children. Lurking in their waters is always the danger of
drowning. Against this danger children are early
instructed so that they are sufficiently presumed to know
the danger; and if the owner of private property creates an
artificial pool on his own property, merely duplicating the
work of nature without adding any new danger, he is not
liable because of having created an "attractive nuisance."

RTC: Dismissed the case

CA (Jan. 1986): Reversed - law intended to protect the
plight of the poor and the needy, the ignorant and
the indigent
(Both parties filed their separate motions for reconsideration.
On January 11, 1990, the Court of Appeals rendered an
Amended Decision, the dispositive portion of which reads:)
CA (Jan. 1990) GRANTED. The decision of this Court
dated January 31, 1986 is REVERSED AND SET ASIDE
in favor of RESPONDENDT DAVAO CITY.
ISSUES:
W/N Davao city is negligent and its negligence is the
proximate cause therefore can be liable for damages

HELD:

NO. The herein circumstances lead Us to no other

conclusion than that the proximate and immediate cause
of the death of the victims was due to their own
negligence. Consequently, the petitioners cannot demand
damages from the public respondent.

Considering the nature of the task of emptying a septic

tank especially one which has not been cleaned for years,
an ordinarily prudent person should undoubtedly be aware
of the attendant risks. The victims are no exception; more
so with Mr. Bertulano, an old hand in this kind of service,
who is presumed to know the hazards of the job. His
failure, therefore, and that of his men to take precautionary
measures for their safety was the proximate cause of the
accident.

DOCTRINE: ASSUMPTION OF RISK:

We held 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 fatal accident in this case
would not have happened but for the victims' negligence.

between Angeles City and San Fernando, Pampanga, a headon-collision took place between an International cargo truck,
Loadstar, with Plate No. RF912-T Philippines `76 owned by
private respondents, and driven by Ruben Galang, and a Ford
Escort car bearing Plate No. S2-850 Pampanga 76 driven by
Jose Koh.

Immediately before the collision, the cargo truck, which was

loaded with two hundred (200) cavans of rice weighing about
10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford
Escort, on the other hand, was on its way to Angeles City from
San Fernando. When the northbound car was about ten (10)
meters away from the southern approach of the bridge, two (2)
boys suddenly darted from the right side of the road and into
the lane of the car. The boys were moving back and forth,
unsure of whether to cross all the way to the other side or turn
back. Jose Koh blew the horn of the car, swerved to the left
and entered the lane of the truck; he then switched on the
headlights of the car, applied the brakes and thereafter
attempted to return to his lane. Before he could do so, his car
collided with the truck. The collision occurred in the lane of the
truck, which was the opposite lane, on the said bridge.

An information was filed against Ruben Galang, charging him

for reckless imprudence resulting in multiple homicide, physical
injuries, and damage to property. He was found guilty beyond
reasonable doubt of the charges in the information. The
conviction was affirmed by the CA and achieved finality after
the denial by the CA of his MR and the denial by the SC of his
Petition for Review

WHEREFORE, the amended decision of the Court of

Appeals dated January 11, 1990 is AFFIRMED. No costs

Thereafter, two civil cases were filed based on quasi delict,

these were then consolidated.

[G.R. No. 68102. July 16, 1992.]GEORGE MCKEE and

ARACELI KOH MCKEE, Petitioners, v. INTERMEDIATE
APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, Respondents.

[G.R. No. 68103. July 16, 1992]CARMEN DAYRIT KOH,

LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH
MCKEE,
ANTONIO
KOH
and
ELIZABETH
KOH
TURLA, Petitioners, v. INTERMEDIATE APPELLATE COURT,
JAIME TAYAG and ROSALINDA MANALO, Respondents.

The trial court dismissed the two civil cases finding the
preponderance of evidence to be in favor of the respondents.
The CA ruled that the decision appealed from shall be reversed
and set aside and another one is rendered, ordering
defendants-appellees to pay plaintiffs-appellants. A motion for
reconsideration alleging improper appreciation of the facts was
subsequently filed by private respondents on the basis of
which the respondent Court set aside its previous decision and
affirmed in toto the trial courts judgment based on the fact that
Kohs car invaded the lane of the truck and the collision
occurred while still in Galangs lane gave rise to the
presumption that Koh was negligent.

Facts:

Issue: Whether or not Jose Koh was negligent

Between nine and ten oclock in the morning of 8 January

1977, in Pulong Pulo Bridge along Mac Arthur Highway,

Held: On the basis of the definition and the test of negligence,

no negligence can be imputed to Koh.

Any reasonable and ordinary prudent man would have tried to

avoid running over the two boys by swerving the car away from
where they were even if this would mean entering the opposite
lane. Avoiding such immediate peril would be the natural
course to take particularly where the vehicle in the opposite
lane would be several meters away and could very well slow
down, move to the side of the road and give way to the
oncoming car.

THE EMERGENCY 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.

Jose Koh adopted the best means possible in the given

situation. This means he cannot be considered negligent.
ASSUMING, ARGUENDO, THAT JOSE WAS NEGLIGENT,
THE COLLISION STILL WOULD NOT BE IMPUTED TO HIM
BECAUSE:

1. Proximate Cause: that cause, which, in natural and

continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would
not have occurred.

Galangs negligent act of not slowing down or stopping and

allowing the Escort to return to the right lane was the sufficient
intervening cause and the actual cause of the tragedy (failure
to take the necessary measures and the degree of care
necessary to avoid the collision)

The entry of the car into the lane of the truck would not have
resulted in the collision had the latter heeded the emergency
signals given by the former to slow down and give the car an
opportunity to go back into its proper lane. Instead of slowing
down and swerving to the far right of the road, which was the
proper precautionary measure under the given circumstances,
the truck driver continued at full speed towards the car. The
truck drivers negligence becomes more apparent in view of
the fact that the road is 7.50 meters wide while the car
measures 1.598 meters and the truck, 2.286 meters, in width.
This would mean that both car and truck could pass side by
side with a clearance of 3.661 meters to spare. Furthermore,
the bridge has a level sidewalk, which could have partially
accommodated the truck. Any reasonable man finding himself
in the given situation would have tried to avoid the car instead
of meeting it head-on.

Negligence of Galang apparent in the records: He himself said

that his truck was running at 30 miles (48 kilometers) per hour
along the bridge while the maximum speed allowed by law on
a bridge52 is only 30 kilometers per hour. Under Article 2185
of the Civil Code, a person driving a vehicle is presumed
negligent if at the time of the mishap, he was violating any
traffic regulation.

2. Last Clear Chance Doctrine: A doctrine in the law of torts

which states that the contributory negligence of the party
injured will not defeat the claim for damages if it is shown that
the defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of the negligence
of the injured party. In such cases, the person who had the last
clear chance to avoid the mishap is considered in law solely
responsible for the consequences thereof. A person who has
the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or that of a
third person imputed to the opponent is considered in law
solely responsible for the consequences of the accident. The
doctrine applies only in a situation where the plaintiff was guilty
of prior or antecedent negligence but the defendant, who had
the last fair chance to avoid the impending harm and failed to
do so, is made liable for all the consequences of the accident
notwithstanding the prior negligence of the plaintiff.

Basically, the last clear chance was with Galang, as can be

gleaned from the evidence presented.

Therefore, respondents are found, under Article 2180, directly

and primarily responsible for the acts of their employee. Their
negligence flows from the negligence of their employee. Such
presumption is juris tantum (rebuttable) and not juris et de jure
(conclusive). They did not present evidence that showed that
the diligence of a good father of a family in the selection and
supervision of their employee, Galang.

HEDY GAN y YU, Petitioner, v. THE HONORABLE COURT

OF
APPEALS
and
the
PEOPLE
OF
THE
PHILIPPINES, Respondents.
[G.R. No. L-44264.
September
19,
1988.]
Doctrine: EMERGENCY RULE. 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."
Prior Proceedings:

CFI Manila- Gan was convicted of Homicide thru Reckless

Imprudence.
CA- Judgment modified, Homicide thru simple
imprudence.
SCReversed
CA,
acquitted
Gan.
Facts of the Case: Hedy Gan was driving a Toyota car along
North Bay Boulevard, Tondo, Manila. While in front of house
no. 694 of North Bay Boulevard, there were two vehicles, a
truck and a jeepney parked on one side of the road, one
following the other about two to three meters from each other.
As the car driven by the accused approached the place where
the two vehicles were parked, there was a vehicle coming from
the opposite direction, followed by another which tried to
overtake and bypass the one in front of it and thereby
encroached the lane of the car driven by the accused. To avoid
a head-on collision with the oncoming vehicle, the defendant
swerved to the right and as a consequence, the front bumper
of the Toyota Crown Sedan hit an old man who was about to
cross the boulevard from south to north, pinning him against
the rear of the parked jeepney. The force of the impact caused
the parked jeepney to move forward hitting the rear of the
parked truck ahead of it. The pedestrian was injured, the
Toyota Sedan was damaged on its front, the jeep suffered
damages on its rear and front parts, and the truck sustained
scratches at the wooden portion of its rear. The body of Isidoro
Casino was immediately brought to the hospital but was
(pronounced) dead on arrival.
Issue: Did the CA 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?
Held

and

Ratio:

YES.

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 on the
doer to take precaution against its mischievous results and the
failure
to
do
so
constitutes
negligence.
Applying the emergency rule (as defined above), petitioner is
not guilty of the crime. The amount of time afforded to the
petitioner to react to the situation she was in should be taken
into account 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.
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. 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
powerful 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.

VALENZUELA VS CA
Facts:
June 24, 1990 2 am: While driving from her restaurant at
Araneta avenue towards the direction of Manila, Ma. Lourdes
Valenzuela noticed that she had a flat tire so she parked along
the sidewalk about 1 1/2 feet away, place her emergency lights
and looked for help. While she was pointing her tools to the
man who will help her fixed the tires, she was suddenly hit by
another Mitsubishi Lancer driven by Richard Li who was
intoxicated and she slammed accross his windshield and fell to
the ground. The car was registered in the name of Alexander
Commercial inc. She was sent to UERM where she stayed
for 20 days and her leg was amputated and was replaced with
an artificial one.
In her complaint, Valenzuela asked for the payment of
damages she suffered. However, Li defended that he was not
negligent stating that he was driving only at 55kph and that it
was raining very hard and it was difficult for him to see.
Furthermore, he alleged that he was just trying to avoid an
oncoming vehicle thats why he swerved to the right where he
bumped Valenzuela. According to him, Valenzuelas car was
not parked properly as it was almost at the middle and there
were neither parking lights nor early warning device.
RTC: Richard Li guilty of gross negligence and liable for
damages under Article 2176 of the Civil Code. Alexander
Commercial, Inc., Lis employer, jointly and severally liable for
damages pursuant to Article 2180
CA: there was ample evidence that the car was parked at the
side but absolved Li's employer
Issue:
1)
2)

Whether or not Valenzuela was guilty of contributory

negligence
Whether or not Alexander Commercial Inc as Lis
employer should be held liable

Ruling:
1) No, Valenzuela was not guilty of contributory
negligence. Contributory negligence is conduct on the
part of the injured party, contributing as a legal cause
to the harm he has suffered, which falls below the
standard to which he is required to conform for his own
protection. Under emergency rule, an individual who
suddenly finds himself in a situation of danger and is
required to act without much time to consider the best
means that may be adopted to avoid the impending
danger, is not guilty of negligence if he fails to
undertake what subsequently and upon reflection may
appear to be a better solution, unless the emergency

2)

was brought by his own negligence. She is not

expected to run the entire boulevard in search for a
parking zone or turn on a dark Street or alley where
she would likely find no one to help her.
Yes, Alexander Commercial Inc should be held liable.
Respondent employer is liable Not under the principle
of respondeat superior, which holds the master liable
for acts of the servant (must be in the course of
business), but that of pater familias, in which the
liability ultimately falls upon the employer, for his failure
to exercise the diligence of a good father of the family
in the selection and supervision of his employees. .
Once evidence is introduced showing that the
employer exercised the required amount of care in
selecting its employees, half of the employers burden
is overcome. The question of diligent supervision
however, depends on the circumstances of
employment.
Alexander Commercial, Inc. has not demonstrated, to
our satisfaction that it exercised the care and diligence
of a good father of the family in entrusting its company
car to Li. No allegations were made as to whether or
not the company took the steps necessary to
determine or ascertain the driving proficiency and
history of Li, to whom it gave full and unlimited use of a
company car.

Separate concurring opinion of Vitug:

Pursuant to Article 2180 of the Civil Code that acknowledges
responsibility under a relationship of patria potestas, a person
may be held accountable not only for his own direct culpable
act or negligence but also for those of others albeit predicated
on his own supposed failure to exercise due care in his
supervisory authority and functions. In the case of an
employer, that vicarious liability attaches only when the tortious
conduct of the employee relates to, or is in the course of, his
employment. The question to ask should be whether,-at the
time of the damage or injury, the employee is engaged in the
affairs or concerns of the employer or, independently, in that of
his own. While an employer incurs no liability when an
employees conduct, act or omission is beyond the range of
employment, a minor deviation from the assigned task of an
employee, however, does not affect the liability of an employer.

G.R. No. 83491 August 27, 1990

MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO
ARANETA, petitioners,
vs.
HON.
COURT
OF
APPEALS
and
HERMINIA
FAMOSO, respondents.

FACTS:

On March 22, 1980, Famoso was riding with a coemployee in the caboose or "carbonera" of Plymouth No. 12, a
cargo train of the petitioner, when the locomotive was suddenly
derailed. He and his companion jumped off to escape injury,
but the train fell on its side, caught his legs by its wheels and
pinned him down. He was declared dead on the spot. The
claims for death and other benefits having been denied by the
petitioner, the herein private respondent filed suit in the
Regional Trial Court of Bago City. Judge Marietta Hobilla-Alinio
ruled in her favor but deducted from the total damages
awarded 25% thereof for the decedent's contributory
negligence and the total pension of P41,367.60 private
respondent and her children would be receiving from the SSS
for the next five years The widow appealed, claiming that the
eductions were illegal. So did the petitioner, but on the ground
that it was not negligent and therefore not liable at all. In its
own decision, the Court of Appeals 2 sustained the rulings of
the trial court except as to the contributory negligence of the
deceased and disallowed the deductions protested by the
private respondent.

ISSUE:
Whether or not the respondent court is at fault for
finding the petitioner guilty of negligence notwithstanding its
defense of due diligence under Article 2176 of the Civil Code.

RULING:

To say the least, the Court views with regret the

adamant refusal of petitioner Ma-ao Sugar Central to
recompense the private respondent for the death of Julio
Famoso, their main source of support, who was killed in line of
duty while in its employ. It is not only a matter of law but also of
compassion on which we are called upon to rule today. We
shall state at the outset that on both counts the petition must
fail.

Investigation of the accident revealed that the

derailment of the locomotive was caused by protruding rails
which had come loose because they were not connected and
fixed in place by fish plates. Fish plates are described as strips
of iron 8" to 12" long and 3 1/2" thick which are attached to the
rails by 4 bolts, two on each side, to keep the rails aligned.
Although they could be removed only with special equipment,
the fish plates that should have kept the rails aligned could not
be found at the scene of the accident.

There is no question that the maintenance of the rails,

for the purpose inter alia of preventing derailments, was the
responsibility of the petitioner, and that this responsibility was
not discharged. According to Jose Treyes, its own witness, who
was in charge of the control and supervision of its train
operations, cases of derailment in the milling district were
frequent and there were even times when such derailments
were reported every hour. 3 The petitioner should therefore
have taken more prudent steps to prevent such accidents
instead of waiting until a life was finally lost because of its
negligence.

The argument that no one had been hurt before

because of such derailments is of course not acceptable. And
neither are we impressed by the claim that the brakemen and
the conductors were required to report any defect in the
condition of the railways and to fill out prescribed forms for the

purpose. For what is important is that the petitioner should act

on these reports and not merely receive and file them. The fact
that it is not easy to detect if the fish plates are missing is no
excuse either. Indeed, it should stress all the more the need for
the responsible employees of the petitioner to make periodic
checks and actually go down to the railroad tracks and see if
the fish plates were in place.
It is argued that the locomotive that was derailed was
on its way back and that it had passed the same rails earlier
without accident. The suggestion is that the rails were properly
aligned then, but that does not necessarily mean they were still
aligned afterwards. It is possible that the fish plates were
loosened and detached during its first trip and the rails were as
a result already mis-aligned during the return trip. But the Court
feels that even this was unlikely, for, as earlier noted, the fish
plates were supposed to have been bolted to the rails and
could be removed only with special tools. The fact that the fish
plates were not found later at the scene of the mishap may
show they were never there at all to begin with or had been
removed long before.

At any rate, the absence of the fish plates whatever

the cause or reason is by itself alone proof of the negligence
of the petitioner. Res ipsa loquitur, bitches.