G.R. No.

L-57079 September 29, 1989 IN VIEW OF THE FOREGOING considerations the

PHILIPPINE LONG DISTANCE TELEPHONE CO.,
INC., petitioner,
vs. COURT OF APPEALS and SPOUSES ANTONIO
ESTEBAN and GLORIA ESTEBAN, respondents.
REGALADO, J.:
defendant Philippine Long Distance Telephone
Company is hereby ordered (A) to pay the plaintiff
Gloria Esteban the sum of P20,000.00 as moral
damages and P5,000.00 exemplary damages; to
plaintiff Antonio Esteban the sum of P2,000.00 as
moral damages and P500.00 as exemplary
damages, with legal rate of interest from the date
of the filing of the complaint until fully paid. The
defendant is hereby ordered to pay the plaintiff the
sum of P3,000.00 as attorney's fees.

This case had its inception in an action for damages

instituted in the former Court of First Instance of
Negros Occidental 1 by private respondent spouses
(B) The third-party defendant is hereby ordered to
against petitioner Philippine Long Distance Telephone
reimburse whatever amount the defendant-third
Company (PLDT, for brevity) for the injuries they
party plaintiff has paid to the plaintiff. With costs
sustained in the evening of July 30, 1968 when their
against the defendant. 6
jeep ran over a mound of earth and fell into an open
trench, an excavation allegedly undertaken by PLDT for
the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban
failed to notice the open trench which was left From this decision both PLDT and private respondents
uncovered because of the creeping darkness and the appealed, the latter appealing only as to the amount of
lack of any warning light or signs. As a result of the damages. Third-party defendant Barte did not appeal.
accident, respondent Gloria Esteban allegedly
sustained injuries on her arms, legs and face, leaving a
permanent scar on her cheek, while the respondent
husband suffered cut lips. In addition, the windshield of
On September 25, 1979, the Special Second Division of
the jeep was shattered. 2
the Court of Appeals rendered a decision in said
appealed case, with Justice Corazon Juliano Agrava
as ponente, reversing the decision of the lower court
and dismissing the complaint of respondent spouses. It
PLDT, in its answer, denies liability on the contention held that respondent Esteban spouses were negligent
that the injuries sustained by respondent spouses were and consequently absolved petitioner PLDT from the
the result of their own negligence and that the entity claim for damages. 7 A copy of this decision was
which should be held responsible, if at all, is L.R. Barte received by private respondents on October 10,
and Company (Barte, for short), an independent 1979. 8 On October 25, 1979, said respondents filed a
contractor which undertook the construction of the motion for reconsideration dated October 24,
manhole and the conduit system. 3 Accordingly, PLDT 1979. 9 On January 24, 1980, the Special Ninth Division
filed a third-party complaint against Barte alleging that, of the Court of Appeals denied said motion for
under the terms of their agreement, PLDT should in no reconsideration.10 This resolution was received by
manner be answerable for any accident or injuries respondent spouses on February 22, 1980. 11
arising from the negligence or carelessness of Barte or
any of its employees. 4 In answer thereto, Barte
claimed that it was not aware nor was it notified of the
accident involving respondent spouses and that it had
On February 29, 1980, respondent Court of Appeals
complied with the terms of its contract with PLDT by
received private respondents' motion for leave of court
installing the necessary and appropriate standard signs
to file a second motion for reconsideration, dated
in the vicinity of the work site, with barricades at both
February 27, 1980. 12 On March 11, 1980, respondent
ends of the excavation and with red lights at night
court, in a resolution likewise penned by Justice
along the excavated area to warn the traveling public
Agrava, allowed respondents to file a second motion
of the presence of excavations. 5
for reconsideration, within ten (10) days from notice
thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for
On October 1, 1974, the trial court rendered a decision reconsideration on March 7, 1980. 14
in favor of private respondents, the decretal part of
which reads:
On April 30,1980 petitioner PLDT filed an opposition to
and/or motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of the
divergent opinions on the resolution of the second
motion for reconsideration, designated two additional
justices to form a division of five. 16 On September 3,
1980, said division of five promulgated its resolution,
penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in
toto the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion
to set aside and/or for reconsideration of the resolution
of September 3, 1980, contending that the second
motion for reconsideration of private respondent
spouses was filed out of time and that the decision of
September 25, 1979 penned by Justice Agrava was
already final. It further submitted therein that the
relationship of Barte and petitioner PLDT should be
viewed in the light of the contract between them and,
under the independent contractor rule, PLDT is not
liable for the acts of an independent contractor. 18 On
May 11, 1981, respondent Court of Appeals
promulgated its resolution denying said motion to set
aside and/or for reconsideration and affirming in
toto the decision of the lower court dated October 1,
1974. 19
Coming to this Court on a petition for review
on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying
private respondents' second motion for reconsideration
on the ground that the decision of the Special Second
Division, dated September 25, 1979, and the resolution
of the Special Ninth Division, dated January 24, 1980,
are already final, and on the additional ground that
said second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid
decision and resolution and in misapplying the
independent contractor rule in holding PLDT liable to
respondent Esteban spouses.
A convenient resume of the relevant proceedings in the
respondent court, as shown by the records and
admitted by both parties, may be graphically
presented as follows:
(a) September 25, 1979, a decision was rendered
by the Court of Appeals with Justice Agrava
as ponente;
(b) October 10, 1979, a copy of said decision was
received by private respondents;
(c) October 25, 1979, a motion for reconsideration
was filed by private respondents;
(d) January 24, 1980, a resolution was issued
denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial
resolution was received by private respondents;
(f) February 29, 1980, a motion for leave to file a
second motion for reconsideration was filed by
private respondents
(g) March 7, 1980, a second motion for
reconsideration was filed by private respondents;
(h) March 11, 1980, a resolution was issued
allowing respondents to file a second motion for
reconsideration within ten (10) days from receipt;
and
(i) September 3, 1980, a resolution was issued,
penned by Justice Zosa, reversing the original
decision dated September 25, 1979 and setting
aside the resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that
both the motion for leave to file a second motion for
reconsideration and, consequently, said second motion
for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had
procedural governance at the time, provided that a
second motion for reconsideration may be presented
within fifteen (15) days from notice of the order or
judgment deducting the time in which the first motion
has been pending. 20 Private respondents having filed
their first motion for reconsideration on the last day of
the reglementary period of fifteen (15) days within
which to do so, they had only one (1) day from receipt
of the order denying said motion to file, with leave of
court, a second motion for reconsideration. 21 In the
present case, after their receipt on February 22, 1980
of the resolution denying their first motion for
reconsideration, private respondents had two remedial
options. On February 23, 1980, the remaining one (1)
day of the aforesaid reglementary period, they could
have filed a motion for leave of court to file a second
motion for reconsideration, conceivably with a prayer
for the extension of the period within which to do so.
On the other hand, they could have appealed through a
petition for review on certiorari to this Court within
fifteen (15) days from February 23, 1980. 22 Instead,
they filed a motion for leave to file a second motion 'for
reconsideration on February 29, 1980, and said second
motion for reconsideration on March 7, 1980, both of
which motions were by then time-barred.
Consequently, after the expiration on February 24,
1980 of the original fifteen (15) day period, the running
of which was suspended during the pendency of the
first motion for reconsideration, the Court of Appeals
could no longer validly take further proceedings on the
merits of the case, much less to alter, modify or
reconsider its aforesaid decision and/or resolution. The
filing of the motion for leave to file a second motion for
reconsideration by herein respondents on February 29,
1980 and the subsequent filing of the motion itself on
March 7, 1980, after the expiration of the reglementary
period to file the same, produced no legal effects. Only
a motion for re-hearing or reconsideration filed in time
shall stay the final order or judgment sought to be re-
examined. 23
The consequential result is that the resolution of
respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving
them an extension of ten (10) days to file a second
motion for reconsideration, is null and void. The period
for filing a second motion for reconsideration had
already expired when private respondents sought leave
to file the same, and respondent court no longer had
the power to entertain or grant the said motion. The
aforesaid extension of ten (10) days for private
respondents to file their second motion for
reconsideration was of no legal consequence since it
was given when there was no more period to extend. It
is an elementary rule that an application for extension
of time must be filed prior to the expiration of the
period sought to be extended. 24 Necessarily, the
discretion of respondent court to grant said extension
for filing a second motion for reconsideration is
conditioned upon the timeliness of the motion seeking
the same.
No appeal having been taken seasonably, the
respondent court's decision, dated September 25,
1979, became final and executory on March 9, 1980.
The subsequent resolutions of respondent court, dated
March 11, 1980 and September 3, 1980, allowing
private respondents to file a second motion for
reconsideration and reversing the original decision are
null and void and cannot disturb the finality of the
judgment nor restore jurisdiction to respondent court.
This is but in line with the accepted rule that once a
decision has become final and executory it is removed
from the power and jurisdiction of the court which
rendered it to further alter or amend, much less revoke
it. 25 The decision rendered anew is null and void. 26 The
court's inherent power to correct its own errors should
be exercised before the finality of the decision or order
sought to be corrected, otherwise litigation will be
endless and no question could be considered finally
settled. Although the granting or denial of a motion for
reconsideration involves the exercise of
discretion, 27 the same should not be exercised
whimsically, capriciously or arbitrarily, but prudently in
conformity with law, justice, reason and equity. 28
Prescinding from the aforesaid procedural lapses into
the substantive merits of the case, we find no error in
the findings of the respondent court in its original
decision that the accident which befell private
respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment
and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24,
1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside
lane of Lacson Street. If it had remained on that
inside lane, it would not have hit the ACCIDENT
MOUND.
Exhibit B shows, through the tiremarks, that the
ACCIDENT MOUND was hit by the jeep swerving
from the left that is, swerving from the inside lane.
What caused the swerving is not disclosed; but, as
the cause of the accident, defendant cannot be
made liable for the damages suffered by plaintiffs.
The accident was not due to the absence of
warning signs, but to the unexplained abrupt
swerving of the jeep from the inside lane. That may
explain plaintiff-husband's insistence that he did
not see the ACCIDENT MOUND for which reason he
ran into it.
Second. That plaintiff's jeep was on the inside lane
before it swerved to hit the ACCIDENT MOUND
could have been corroborated by a picture showing
Lacson Street to the south of the ACCIDENT
MOUND.
It has been stated that the ditches along Lacson
Street had already been covered except the 3 or 4
meters where the ACCIDENT MOUND was located.
Exhibit B-1 shows that the ditches on Lacson Street
north of the ACCIDENT MOUND had already been
covered, but not in such a way as to allow the
outer lane to be freely and conveniently passable
to vehicles. The situation could have been worse to
 the south of the ACCIDENT MOUND for which
reason no picture of the ACCIDENT MOUND facing
south was taken.
Third. Plaintiff's jeep was not running at 25
kilometers an hour as plaintiff-husband claimed. At
that speed, he could have braked the vehicle the
moment it struck the ACCIDENT MOUND. The jeep
would not have climbed the ACCIDENT MOUND
several feet as indicated by the tiremarks in Exhibit
B. The jeep must have been running quite fast. If
the jeep had been braked at 25 kilometers an hour,
plaintiff's would not have been thrown against the
windshield and they would not have suffered their
injuries.
Fourth. If the accident did not happen because the
jeep was running quite fast on the inside lane and
for some reason or other it had to swerve suddenly
to the right and had to climb over the ACCIDENT
MOUND, then plaintiff-husband had not exercised
the diligence of a good father of a family to avoid
the accident. With the drizzle, he should not have
run on dim lights, but should have put on his
regular lights which should have made him see the
ACCIDENT MOUND in time. If he was running on the
outside lane at 25 kilometers an hour, even on dim
lights, his failure to see the ACCIDENT MOUND in
time to brake the car was negligence on his part.
The ACCIDENT MOUND was relatively big and
visible, being 2 to 3 feet high and 1-1/2 feet wide. If
he did not see the ACCIDENT MOUND in time, he
would not have seen any warning sign either. He
knew of the existence and location of the
ACCIDENT MOUND, having seen it many previous
times. With ordinary precaution, he should have
driven his jeep on the night of the accident so as to
avoid hitting the ACCIDENT MOUND. 29
The above findings clearly show that the negligence of
respondent Antonio Esteban was not only contributory
to his injuries and those of his wife but goes to the very
cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right
to recover damages. 30 The perils of the road were
known to, hence appreciated and assumed by, private
respondents. By exercising reasonable care and
prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged
negligence on the part of petitioner.
The presence of warning signs could not have
completely prevented the accident; the only purpose of
said signs was to inform and warn the public of the
presence of excavations on the site. The private
respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to
fall into the excavation but the unexplained sudden
swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the
omission to perform a duty, such as the placing of
warning signs on the site of the excavation, constitutes
the proximate cause only when the doing of the said
omitted act would have prevented the injury. 31 It is
basic that private respondents cannot charge PLDT for
their injuries where their own failure to exercise due
and reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last
clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to
petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had
knowledge of the presence and location of the
excavations there. It was his negligence that exposed
him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent
Court of Appeals in its original decision that there was
insufficient evidence to prove any negligence on the
part of PLDT. We have for consideration only the self-
serving testimony of respondent Antonio Esteban and
the unverified photograph of merely a portion of the
scene of the accident. The absence of a police report of
the incident and the non-submission of a medical
report from the hospital where private respondents
were allegedly treated have not even been
satisfactorily explained.
As aptly observed by respondent court in its aforecited
extended resolution of January 24, 1980
(a) There was no third party eyewitness of the
accident. As to how the accident occurred, the
Court can only rely on the testimonial evidence of
plaintiffs themselves, and such evidence should be
very carefully evaluated, with defendant, as the
party being charged, being given the benefit of any
doubt. Definitely without ascribing the same
motivation to plaintiffs, another person could have
deliberately engineered a similar accident in the
hope and expectation that the Court can grant him
substantial moral and exemplary damages from
the big corporation that defendant is. The
statement is made only to stress the
disadvantageous position of defendant which
 would have extreme difficulty in contesting such
person's claim. If there were no witness or record
available from the police department of Bacolod,
defendant would not be able to determine for itself
which of the conflicting testimonies of plaintiffs is
correct as to the report or non-report of the
accident to the police department. 32
A person claiming damages for the negligence of
another has the burden of proving the existence of
such fault or negligence causative thereof. The facts
constitutive of negligence must be affirmatively
established by competent evidence. 33 Whosoever
relies on negligence for his cause of action has the
burden in the first instance of proving the existence of
the same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of
Appeals, dated March 11, 1980 and September 3,1980,
are hereby SET ASIDE. Its original decision,
promulgated on September 25,1979, is hereby
REINSTATED and AFFIRMED.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, Padilla and
Sarmiento JJ., concur.
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC
COMPANY, petitioner,
vs. HONORABLE COURT OF APPEALS, (First
Division) LILIAN JUAN LUIS, JANE JUAN YABES,
VIRGINIA JUAN CID, GLORIA JUAN CARAG, and
PURISIMA JUAN, respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.
PARAS, J.:
Sought to be reversed in this petition is the Decision *
of the respondent Court of Appeals' First Division,
setting aside the judgment of the then Court of First
Instance (CFI) of Ilocos Norte, with the following
dispositive portion:
WHEREFORE, the appealed judgment is hereby set
aside and another rendered in its stead whereby
defendant is hereby sentenced to pay plaintiffs
actual damages of P30,229.45; compensatory
damages of P50,000.00; exemplary damages of
P10,000.00; attorney's fees of P3,000.00; plus the
costs of suit in both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence
whereby both patties strive for the recognition of their
respective versions of the scenario from which the
disputed claims originate. The respondent Court of
Appeals (CA) summarized the evidence of the parties
as follows:
From the evidence of plaintiffs it appears that in
the evening of June 28 until the early morning of
June 29, 1967 a strong typhoon by the code name
"Gening" buffeted the province of Ilocos Norte,
bringing heavy rains and consequent flooding in its
wake. Between 5:30 and 6:00 A.M. on June 29,
1967, after the typhoon had abated and when the
floodwaters were beginning to recede the
deceased Isabel Lao Juan, fondly called Nana
Belen, ventured out of the house of her son-in-law,
Antonio Yabes, on No. 19 Guerrero Street, Laoag
City, and proceeded northward towards the
direction of the Five Sisters Emporium, of which she
was the owner and proprietress, to look after the
merchandise therein that might have been
damaged. Wading in waist-deep flood on Guerrero,
the deceased was followed by Aida Bulong, a
Salesgirl at the Five Sisters Grocery, also owned by
the deceased, and by Linda Alonzo Estavillo, a
ticket seller at the YJ Cinema, which was partly
owned by the deceased. Aida and Linda walked
side by side at a distance of between 5 and 6
meters behind the deceased, Suddenly, the
deceased screamed "Ay" and quickly sank into the
water. The two girls attempted to help, but fear
dissuaded them from doing so because on the spot
where the deceased sank they saw an electric wire
dangling from a post and moving in snake-like
fashion in the water. Upon their shouts for help,
Ernesto dela Cruz came out of the house of Antonio
Yabes. Ernesto tried to go to the deceased, but at
four meters away from her he turned back shouting
that the water was grounded. Aida and Linda
prodded Ernesto to seek help from Antonio Yabes at
the YJ Cinema building which was four or five
blocks away.

When Antonio Yabes was informed by Ernesto that
his mother-in law had been electrocuted, he acted
immediately. With his wife Jane, together with
Ernesto and one Joe Ros, Yabes passed by the City
Hall of Laoag to request the police to ask the
people of defendant Ilocos Norte Electric Company
or INELCO to cut off the electric current. Then the
party waded to the house on Guerrero Street. The
floodwater was receding and the lights inside the
house were out indicating that the electric current
had been cut off in Guerrero. Yabes instructed his
boys to fish for the body of the deceased. The body
was recovered about two meters from an electric
post.
In another place, at about 4:00 A.M. on that fateful
date, June 29, 1967, Engineer Antonio Juan, Power
Plant Engineer of the National Power Corporation at
the Laoag Diesel-Electric Plant, noticed certain
fluctuations in their electric meter which indicated
such abnormalities as grounded or short-circuited
lines. Between 6:00 and 6:30 A.M., he set out of
the Laoag NPC Compound on an inspection. On the
way, he saw grounded and disconnected lines.
Electric lines were hanging from the posts to the
ground. Since he could not see any INELCO
lineman, he decided to go to the INELCO Office at
the Life Theatre on Rizal Street by way of Guerrero.
As he turned right at the intersection of Guerrero
and Rizal, he saw an electric wire about 30 meters
long strung across the street "and the other end
was seeming to play with the current of the water."
(p. 64, TSN, Oct. 24, 1972) Finding the Office of the
INELCO still closed, and seeing no lineman therein,
he returned to the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the
compound again on another inspection trip. Having
learned of the death of Isabel Lao Juan, he passed
by the house of the deceased at the corner of
Guerrero and M.H. del Pilar streets to which the
body had been taken. Using the resuscitator which
was a standard equipment in his jeep and
employing the skill he acquired from an in service
training on resuscitation, he tried to revive the
deceased. His efforts proved futile. Rigor
mortis was setting in. On the left palm of the
deceased, Engr. Juan noticed a hollow wound.
Proceeding to the INELCO Office, he met two
linemen on the way. He told them about the
grounded lines of the INELCO In the afternoon of
the same day, he went on a third inspection trip
preparatory to the restoration of power. The
dangling wire he saw on Guerrero early in the
morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of
Guerrero and M.H. del Pilar after learning that the
deceased had been electrocuted. Among the
sympathizers was Dr. Jovencio Castro, Municipal
Health Officer of Sarrat, Ilocos Norte. Upon the
request of the relatives of the deceased, Dr. Castro
examined the body at about 8:00 A.M. on June 29,
1967. The skin was grayish or, in medical parlance,
cyanotic, which indicated death by electrocution.
On the left palm, the doctor found an "electrically
charged wound" (Exh. C-1: p. 101, TSN, Nov. 28,
1972) or a first degree burn. About the base of the
thumb on the left hand was a burned wound. (Exh.
C-2, pp. 102-103, Ibid.) The certificate of death
prepared by Dr. Castro stated the cause of' death
as ,'circulatory shock electrocution" (Exh. I; p.
103, Ibid.).
In defense and exculpation, defendant presented
the testimonies of its officers and employees,
namely, Conrado Asis, electric engineer; Loreto
Abijero, collector-inspector; Fabico Abijero, lineman;
and Julio Agcaoili, president-manager of INELCO
Through the testimonies of these witnesses,
defendant sought to prove that on and even before
June 29, 1967 the electric service system of the
INELCO in the whole franchise area, including Area
No. 9 which covered the residence of Antonio Yabes
at No. 18 Guerrero Street, did not suffer from any
defect that might constitute a hazard to life and
property. The service lines, devices and other
INELCO equipment in Area No. 9 had been newly-
installed prior to the date in question. As a public
service operator and in line with its business of
supplying electric current to the public, defendant
had installed safety devices to prevent and avoid
injuries to persons and damage to property in case
of natural calamities such as floods, typhoons, fire
and others. Defendant had 12 linesmen charged
with the duty of making a round-the-clock check-up
of the areas respectively assigned to them.
Defendant asserts that although a strong typhoon
struck the province of Ilocos Norte on June 29,
1967, putting to streets of Laoag City under water,
only a few known places in Laoag were reported to
have suffered damaged electric lines, namely, at
the southern approach of the Marcos Bridge which
was washed away and where the INELCO lines and
posts collapsed; in the eastern part near the
residence of the late Governor Simeon Mandac; in
the far north near the defendant's power plant at
the corner of Segundo and Castro Streets, Laoag
City and at the far northwest side, near the
premises of the Ilocos Norte National High School.
Fabico Abijero, testified that in the early morning
before 6 o'clock on June 29, 1967 he passed by the
intersection of Rizal and Guerrero Streets to switch
 off the street lights in Area No. 9. He did not see
any cut or broken wires in or near the vicinity. What
he saw were many people fishing out the body of
Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was
presented by the defense to show that the
deceased could not have died of electrocution
Substantially, the testimony of the doctor is as
follows: Without an autopsy on the cadaver of the
victim, no doctor, not even a medicolegal expert,
can speculate as to the real cause of death.
Cyanosis could not have been found in the body of
the deceased three hours after her death, because
cyanosis which means lack of oxygen circulating in
the blood and rendering the color of the skin
purplish, appears only in a live person. The
presence of the elongated burn in the left palm of
the deceased (Exhibits C-1 and C-2) is not sufficient
to establish her death by electrocution; since burns
caused by electricity are more or less round in
shape and with points of entry and exit. Had the
deceased held the lethal wire for a long time, the
laceration in her palm would have been bigger and
the injury more massive. (CA Decision, pp. 18-21,
Rollo)
An action for damages in the aggregate amount of
P250,000 was instituted by the heirs of the deceased
with the aforesaid CFI on June 24, 1968. In its Answer
(Vide, Record on Appeal, p. 55, Rollo), petitioner
advanced the theory, as a special defense, that the
deceased could have died simply either by drowning or
by electrocution due to negligence attributable only to
herself and not to petitioner. In this regard, it was
pointed out that the deceased, without petitioner's
knowledge, caused the installation of a burglar
deterrent by connecting a wire from the main house to
the iron gate and fence of steel matting, thus, charging
the latter with electric current whenever the switch is
on. Petitioner then conjectures that the switch to said
burglar deterrent must have been left on, hence,
causing the deceased's electrocution when she tried to
open her gate that early morning of June 29, 1967.
After due trial, the CFI found the facts in favor of
petitioner and dismissed the complaint but awarded to
the latter P25,000 in moral damages and attorney's
fees of P45,000. An appeal was filed with the CA which
issued the controverted decision.
In this petition for review the petitioner assigns the
following errors committed by the respondent CA:
1. The respondent Court of Appeals committed
grave abuse of discretion and error in considering
the purely hearsay alleged declarations of Ernesto
de la Cruz as part of the res gestae.
2. The respondent Court of Appeals committed
grave abuse of discretion and error in holding that
the strong typhoon "Gening" which struck Laoag
City and Ilocos Norte on June 29, 1967 and the
flood and deluge it brought in its wake were not
fortuitous events and did not exonerate petitioner-
company from liability for the death of Isabel Lao
Juan.
3. The respondent Court of Appeals gravely abused
its discretion and erred in not applying the legal
principle of "assumption of risk" in the present case
to bar private respondents from collecting
damages from petitioner company.
4. That the respondent Court of Appeals gravely
erred and abused its discretion in completely
reversing the findings of fact of the trial court.
5. The findings of fact of the respondent Court of
Appeals are reversible under the recognized
exceptions.
6. The trial court did not err in awarding moral
damages and attorney's fees to defendant
corporation, now petitioner company.
7. Assuming arguendo that petitioner company
may be held liable from the death of the late Isabel
Lao Juan, the damages granted by respondent
Court of Appeals are improper and exhorbitant.
(Petitioners Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether
or not the deceased died of electrocution; (2) whether
or not petitioner may be held liable for the deceased's
death; and (3) whether or not the respondent CA's
substitution of the trial court's factual findings for its
own was proper.
In considering the first issue, it is Our view that the
same be resolved in the affirmative. By a
preponderance of evidence, private respondents were
able to show that the deceased died of electrocution, a
conclusion which can be primarily derived from the
photographed burnt wounds (Exhibits "C", "C-1", "C-2")
on the left palm of the former. Such wounds
undoubtedly point to the fact that the deceased had
clutched a live wire of the petitioner. This was
corroborated by the testimony of Dr. Jovencio Castro
who actually examined the body of the deceased a few
hours after the death and described the said burnt
wounds as a "first degree burn" (p. 144, TSN,
December 11, 1972) and that they were "electrically
charged" (p. 102, TSN, November 28, 1972).
Furthermore, witnesses Linda Alonzo Estavillo and Aida
Bulong added that after the deceased screamed "Ay"
and sank into the water, they tried to render some help
but were overcome with fear by the sight of an electric
wire dangling from an electric post, moving in the
water in a snake-like fashion (supra). The foregoing
therefore justifies the respondent CA in concluding that
"(t)he nature of the wounds as described by the
witnesses who saw them can lead to no other
conclusion than that they were "burns," and there was
nothing else in the street where the victim was wading
thru which could cause a burn except the dangling live
wire of defendant company" (CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into
the theory that the deceased was electrocuted, if such
was really the case when she tried to open her steel
gate, which was electrically charged by an electric wire
she herself caused to install to serve as a burglar
deterrent. Petitioner suggests that the switch to said
burglar alarm was left on. But this is mere speculation,
not backed up with evidence. As required by the Rules,
"each party must prove his own affirmative
allegations." (Rule 131, Sec. 1). Nevertheless, the CA
significantly noted that "during the trial, this theory
was abandoned" by the petitioner (CA Decision, p. 23,
Rollo).
Furthermore the CA properly applied the principle
of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida
Bulong, a salesgirl, were with the deceased during
that fateful morning of June 29, 1967. This Court
has not been offered any sufficient reason to
discredit the testimonies of these two young ladies.
They were one in the affirmation that the
deceased, while wading in the waist-deep flood on
Guerrero Street five or six meters ahead of them,
suddenly screamed "Ay" and quickly sank into the
water. When they approached the deceased to
help, they were stopped by the sight of an electric
wire dangling from a post and moving in snake-like
fashion in the water. Ernesto dela Cruz also tried to
approach the deceased, but he turned back
shouting that the water was grounded. These bits
of evidence carry much weight. For the subject of
the testimonies was a startling occurrence, and the
declarations may be considered part of the res
gestae. (CA Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the
following requisites must be present: (1) that the
principal act, the res gestae, be a startling occurrence;
(2) that the statements were made before the
declarant had time to contrive or devise; (3) that the
statements made must concern the occurrence in
question and its immediately attending circumstances
(People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122
SCRA 959). We do not find any abuse of discretion on
the CA' part in view of the satisfaction of said requisites
in the case at bar.
The statements made relative to the startling
occurrence are admitted in evidence precisely as an
exception to the hearsay rule on the grounds of
trustworthiness and necessity. "Trustworthiness"
because the statements are made instinctively (Wesley
vs. State, 53 Ala. 182), and "necessity" because such
natural and spontaneous utterances are more
convincing than the testimony of the same person on
the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the
fact that the declarant, Ernesto de la Cruz, was not
presented to testify does not make the testimony of
Linda Alonzo Estavillo and Aida Bulong hearsay since
the said declaration is part of the res gestae. Similarly,
We considered part of the res gestae a conversation
between two accused immediately after commission of
the crime as overheard by a prosecution witness
(People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide
petitioner's Memorandum, p. 135, Rollo), Ernesto de la
Cruz was not an actual witness to the instant when the
deceased sank into the waist-deep water, he acted
upon the call of help of Aida Bulong and Linda Alonzo
Estavillo with the knowledge of, and immediately after,
the sinking of the deceased. In fact the startling event
had not yet ceased when Ernesto de la Cruz entered
the scene considering that the victim remained
submerged. Under such a circumstance, it is
undeniable that a state of mind characterized by
nervous excitement had been triggered in Ernesto de la
Cruz's being as anybody under the same contingency
could have experienced. As such, We cannot honestly
exclude his shouts that the water was grounded from
the res gestae just because he did not actually see the
sinking of the deceased nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere
opinion of Ernesto de la Cruz. While We concede to the
submission that the statement must be one of facts
rather than opinion, We cannot agree to the proposition
that the one made by him was a mere opinion. On the
contrary, his shout was a translation of an actuality as
perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la
Cruz' testimony was suppressed by the private
respondents, thus, is presumed to be adverse to them
pursuant to Section 5(e), Rule 131. For the application
of said Rule as against a party to a case, it is necessary
that the evidence alleged to be suppressed is available
only to said party (People vs. Tulale, L-7233, 18 May
1955, 97 Phil. 953). The presumption does not operate
if the evidence in question is equally available to both
parties (StaplesHowe Printing Co. vs. Bldg. and Loan
Assn., 36 Phil. 421). It is clear from the records that
petitioner could have called Ernesto de la Cruz to the
witness stand. This, precisely, was Linda Alonzo
Estavillo's suggestion to petitioner's counsel when she
testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach
from the gate of the house?
A. Well, you can ask that matter from him sir
because he is here. (TSN, p. 30, 26 Sept. 1972)
The foregoing shows that petitioner had the
opportunity to verify the declarations of Ernesto de la
Cruz which, if truly adverse to private respondent,
would have helped its case. However, due to reasons
known only to petitioner, the opportunity was not
taken.
Coming now to the second issue, We tip the scales in
the private respondents' favor. The respondent CA
acted correctly in disposing the argument that
petitioner be exonerated from liability since typhoons
and floods are fortuitous events. While it is true that
typhoons and floods are considered Acts of God for
which no person may be held responsible, it was not
said eventuality which directly caused the victim's
death. It was through the intervention of petitioner's
negligence that death took place. We subscribe to the
conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred
liability for the electrocution and consequent death
of the late Isabel Lao Juan, defendant called to the
witness-stand its electrical engineer, chief lineman,
and lineman to show exercise of extraordinary
diligence and to negate the charge of negligence.
The witnesses testified in a general way about their
duties and the measures which
defendant usually adopts to prevent hazards to life
and limb. From these testimonies, the lower court
found "that the electric lines and other equipment
of defendant corporation were properly maintained
by a well-trained team of lineman, technicians and
engineers working around the clock to insure that
these equipments were in excellent condition at all
times." (P. 40, Record on Appeal) The finding of the
lower court, however, was based on what the
defendant's employees were supposed to do, not
on what they actually did or failed to do on the
date in question, and not on the occasion of
the emergency situation brought about by the
typhoon.
The lower court made a mistake in assuming that
defendant's employees worked around the clock
during the occurrence of the typhoon on the night
of June 28 and until the early morning of June 29,
1967, Engr. Antonio Juan of the National Power
Corporation affirmed that when he first set out on
an inspection trip between 6:00 and 6:30 A.M. on
June 29, 1967, he saw grounded and disconnected
electric lines of the defendant but he saw
no INELCO lineman. The INELCO Office at the Life
theatre on Rizal Street was still closed. (pp. 63-64,
TSN, Oct. 24, 1972) Even the witnesses of
defendant contradict the finding of the lower court.
Conrado Asis, defendant's electrical engineer,
testified that he conducted a general inspection of
the franchise area of the INELCO only on June 30,
1967, the day following the typhoon. The reason he
gave for the delay was that all their vehicles were
submerged. (p. 337, TSN, July 20, 1973) According
to Asis, he arrived at his office at 8:00 A.M. on June
30 and after briefing his men on what to do they
started out. (p. 338, lbid) One or two days after the
typhoon, the INELCO people heard "rumors that
someone was electrocuted" so he sent one of his
men to the place but his man reported back that
there was no damaged wire. (p. 385, Id.) Loreto
Abijero, chief lineman of defendant, corroborated
Engr. Juan. He testified that at about 8:00 A.M. on
June 29, 1967 Engr. Juan came to the INELCO plant
and asked the INELCO people to inspect their lines.
He went with Engr. Juan and their inspection lasted
from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN,
Jan. 28, 1975) Fabico Abijero lineman of defendant,
testified that at about 6:00 on June 29, 1967 the
typhoon ceased. At that time, he was at the main
building of the Divine Word College of Laoag where
he had taken his family for refuge. (pp. 510-
511, Ibid.)
In times of calamities such as the one which
occurred in Laoag City on the night of June 28 until
the early hours of June 29, 1967, extraordinary
diligence requires a supplier of electricity to be
in constant vigil to prevent or avoid any probable
incident that might imperil life or limb. The
evidence does not show that defendant did that.
On the contrary, evidence discloses that there were
no men (linemen or otherwise) policing the area,
nor even manning its office. (CA Decision, pp. 24-
25, Rollo)
Indeed, under the circumstances of the case, petitioner
was negligent in seeing to it that no harm is done to
the general public"... considering that electricity is an
agency, subtle and deadly, the measure of care
required of electric companies must be commensurate
with or proportionate to the danger. The duty of
exercising this high degree of diligence and care
extends to every place where persons have a right to
be" (Astudillo vs. Manila Electric, 55 Phil. 427). The
negligence of petitioner having been shown, it may not
now absolve itself from liability by arguing that the
victim's death was solely due to a fortuitous event.
"When an act of God combines or concurs with the
negligence of the defendant to produce an injury, the
defendant is liable if the injury would not have resulted
but for his own negligent conduct or omission" (38 Am.
Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon
by petitioner finds no application in the case at bar. It is
imperative to note the surrounding circumstances
which impelled the deceased to leave the comforts of a
roof and brave the subsiding typhoon. As testified by
Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972)
and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the
deceased, accompanied by the former two, were on
their way to the latter's grocery store "to see to it that
the goods were not flooded." As such, shall We punish
her for exercising her right to protect her property from
the floods by imputing upon her the unfavorable
presumption that she assumed the risk of personal
injury? Definitely not. For it has been held that a person
is excused from the force of the rule, that when he
voluntarily assents to a known danger he must abide
by the consequences, if an emergency is found to exist
or if the life or property of another is in peril (65A
C.S.C. Negligence(174(5), p. 301), or when he seeks to
rescue his endangered property (Harper and James,
"The Law of Torts." Little, Brown and Co., 1956, v. 2, p.
1167). Clearly, an emergency was at hand as the
deceased's property, a source of her livelihood, was
faced with an impending loss. Furthermore, the
deceased, at the time the fatal incident occurred, was
at a place where she had a right to be without regard
to petitioner's consent as she was on her way to
protect her merchandise. Hence, private respondents,
as heirs, may not be barred from recovering damages
as a result of the death caused by petitioner's
negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its
discretion in completely reversing the trial court's
findings of fact, pointing to the testimonies of three of
its employees its electrical engineer, collector-
inspector, lineman, and president-manager to the
effect that it had exercised the degree of diligence
required of it in keeping its electric lines free from
defects that may imperil life and limb. Likewise, the
said employees of petitioner categorically disowned
the fatal wires as they appear in two photographs
taken on the afternoon of June 29, 1967 (Exhs. "D" and
"E"), suggesting that said wires were just hooked to the
electric post (petitioner's Memorandum, p. 170, Rollo).
However, as the CA properly held, "(t)he finding of the
lower court ... was based on what the defendant's
employees were supposed to do, not on what they
actually did or failed to do on the date in question, and
not on the occasion of the emergency situation brought
about by the typhoon" (CA Decision, p. 25, Rollo). And
as found by the CA, which We have already reiterated
above, petitioner was in fact negligent. In a like
manner, petitioner's denial of ownership of the several
wires cannot stand the logical conclusion reached by
the CA when it held that "(t)he nature of the wounds as
described by the witnesses who saw them can lead to
no other conclusion than that they were 'burns', and
there was nothing else in the street where the victim
was wading thru which could cause a burn except the
dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the
wires, due care requires prompt efforts to discover and
repair broken lines" (Cooley on Torts, 4th ed., v. 3, p.
474). The fact is that when Engineer Antonio Juan of
the National Power Corporation set out in the early
morning of June 29, 1967 on an inspection tour, he saw
grounded and disconnected lines hanging from posts to
the ground but did not see any INELCO lineman either
in the streets or at the INELCO office (vide, CA
Decision, supra). The foregoing shows that petitioner's
duty to exercise extraordinary diligence under the
circumstance was not observed, confirming the
negligence of petitioner. To aggravate matters, the CA
found:
. . .even before June 28 the people in Laoag were
already alerted about the impending typhoon,
through radio announcements. Even the fire
department of the city announced the coming of
the big flood. (pp. 532-534, TSN, March 13, 1975)
At the INELCO irregularities in the flow of electric
current were noted because "amperes of the switch
volts were moving". And yet, despite these danger
signals, INELCO had to wait for Engr. Juan to
request that defendant's switch be cut off but the
harm was done. Asked why the delay, Loreto
Abijero answered that he "was not the machine
tender of the electric plant to switch off the
current." (pp. 467-468, Ibid.) How very
characteristic of gross inefficiency! (CA Decision, p.
26, Rollo)
From the preceding, We find that the CA did not abuse
its discretion in reversing the trial court's findings but
tediously considered the factual circumstances at hand
pursuant to its power to review questions of fact raised
from the decision of the Regional Trial Court, formerly
the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent
CA awarded the following in private respondent's favor:
P30,229.45 in actual damages (i.e., P12,000 for the
victim's death and P18,229.45 for funeral expenses);
P50,000 in compensatory damages, computed in
accordance with the formula set in the Villa-Rey Transit
case (31 SCRA 511) with the base of P15,000 as
average annual income of the deceased; P10,000 in
exemplary damages; P3,000 attorney's fees; and costs
of suit. Except for the award of P12,000 as
compensation for the victim's death, We affirm the
respondent CA's award for damages and attorney's
fees. Pusuant to recent jurisprudence (People vs.
Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA
381), We increase the said award of P12,000 to
P30,000, thus, increasing the total actual damages to
P48,229.45.
The exclusion of moral damages and attorney's fees
awarded by the lower court was properly made by the
respondent CA, the charge of malice and bad faith on
the part of respondents in instituting his case being a
mere product of wishful thinking and speculation.
Award of damages and attorney's fees is unwarranted
where the action was filed in good faith; there should
be no penalty on the right to litigate (Espiritu vs. CA,
137 SCRA 50). If damage results from a person's
exercising his legal rights, it is damnum absque
injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the
respondent, except for the slight modification that
actual damages be increased to P48,229.45 is hereby
AFFIRMED.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and
Regalado, JJ., concur.
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant, vs. FRANK
SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to
recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by
an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province
of La Union absolving the defendant from liability the
plaintiff has appealed.
The occurrence which gave rise to the institution of this
action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears
that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had
gotten half way across, the defendant approached from
the opposite direction in an automobile, going at the
rate of about ten or twelve miles per hour. As the
defendant neared the bridge he saw a horseman on it
and blew his horn to give warning of his approach. He
continued his course and after he had taken the bridge
he gave two more successive blasts, as it appeared to
him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming
and heard the warning signals. However, being
perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge
instead of going to the left. He says that the reason he
did this was that he thought he did not have sufficient
time to get over to the other side. The bridge is shown
to have a length of about 75 meters and a width of
4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the
proper side of the road for the machine. In so doing the
defendant assumed that the horseman would move to
the other side. The pony had not as yet exhibited
fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing
down, continued to approach directly toward the horse
without diminution of speed. When he had gotten quite
near, there being then no possibility of the horse
getting across to the other side, the defendant quickly
turned his car sufficiently to the right to escape hitting
the horse alongside of the railing where it as then
standing; but in so doing the automobile passed in
such close proximity to the animal that it became
frightened and turned its body across the bridge with
its head toward the railing. In so doing, it as struck on
the hock of the left hind leg by the flange of the car
and the limb was broken. The horse fell and its rider
was thrown off with some violence. From the evidence
adduced in the case we believe that when the accident
occurred the free space where the pony stood between
the automobile and the railing of the bridge was
probably less than one and one half meters. As a result
of its injuries the horse died. The plaintiff received
contusions which caused temporary unconsciousness
and required medical attention for several days.
The question presented for decision is whether or not
the defendant in maneuvering his car in the manner
above described was guilty of negligence such as gives
rise to a civil obligation to repair the damage done; and
we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right
to assume that the horse and the rider would pass over
to the proper side; but as he moved toward the center
of the bridge it was demonstrated to his eyes that this
would not be done; and he must in a moment have
perceived that it was too late for the horse to cross
with safety in front of the moving vehicle. In the nature
of things this change of situation occurred while the
automobile was yet some distance away; and from this
moment it was not longer within the power of the
plaintiff to escape being run down by going to a place
of greater safety. The control of the situation had then
passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing
that there were no other persons on the bridge, to take
the other side and pass sufficiently far away from the
horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost
upon the horse. He was, we think, deceived into doing
this by the fact that the horse had not yet exhibited
fright. But in view of the known nature of horses, there
was an appreciable risk that, if the animal in question
was unacquainted with automobiles, he might get
exited and jump under the conditions which here
confronted him. When the defendant exposed the
horse and rider to this danger he was, in our opinion,
negligent in the eye of the law.
The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that person would have used in the
same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to
be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by
reference to the personal judgment of the actor in the
situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines
liability by that.
The question as to what would constitute the conduct
of a prudent man in a given situation must of course be
always determined in the light of human experience
and in view of the facts involved in the particular case.
Abstract speculations cannot here be of much value
but this much can be profitably said: Reasonable men
govern their conduct by the circumstances which are
before them or known to them. They are not, and are
not supposed to be, omniscient of the future. Hence
they can be expected to take care only when there is
something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually
pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable
foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary
before negligence can be held to exist. Stated in these
terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct
is said to be negligent when a prudent man in the
position of the tortfeasor would have foreseen that an
effect harmful to another was sufficiently probable to
warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in
the present case we think that negligence is clearly
established. A prudent man, placed in the position of
the defendant, would in our opinion, have recognized
that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to
the horse and the rider as reasonable consequence of
that course. Under these circumstances the law
imposed on the defendant the duty to guard against
the threatened harm.
It goes without saying that the plaintiff himself was not
free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the
road. But as we have already stated, the defendant
was also negligent; and in such case the problem
always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent
acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval.
Under these circumstances the law is that the person
who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the
consequences, without reference to the prior
negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and
Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held
that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it
could be received in evidence to reduce the damages
which would otherwise have been assessed wholly
against the other party. The defendant company had
there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to
the company's yards located not far away. The rails
were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the
track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed.
The car was in consequence upset; the rails slid off;
and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the
effects of the typhoon which had dislodged one of the
supports of the track. The court found that the
defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the
car instead of being in front or behind. It was held that
while the defendant was liable to the plaintiff by reason
of its negligence in having failed to keep the track in
proper repair nevertheless the amount of the damages
should be reduced on account of the contributory
negligence in the plaintiff. As will be seen the
defendant's negligence in that case consisted in an
omission only. The liability of the company arose from
its responsibility for the dangerous condition of its
track. In a case like the one now before us, where the
defendant was actually present and operating the
automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the
respective parties in order to apportion the damage
according to the degree of their relative fault. It is
enough to say that the negligence of the defendant
was in this case the immediate and determining cause
of the accident and that the antecedent negligence of
the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in
the special defense pleaded in the defendant's answer,
to the effect that the subject matter of the action had
been previously adjudicated in the court of a justice of
the peace. In this connection it appears that soon after
the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of
the peace charging the defendant with the infliction of
serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the
magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the
trial upon the merits in a criminal prosecution for the
offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence -- a
point upon which it is unnecessary to express an
opinion -- the action of the justice of the peace in
dismissing the criminal proceeding upon the
preliminary hearing can have no effect. (See U. S. vs.
Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of
the lower court must be reversed, and judgment is her
rendered that the plaintiff recover of the defendant the
sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to
include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of
his apparel, and lawful interest on the whole to the
date of this recovery. The other damages claimed by
the plaintiff are remote or otherwise of such character
as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and
Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to
concur with the judgment in this case. I do so because
of my understanding of the "last clear chance" rule of
the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked
where the negligence of the plaintiff is concurrent with
that of the defendant. Again, if a traveler when he
reaches the point of collision is in a situation to
extricate himself and avoid injury, his negligence at
that point will prevent a recovery. But Justice Street
finds as a fact that the negligent act of the interval of
time, and that at the moment the plaintiff had no
opportunity to avoid the accident. Consequently, the
"last clear chance" rule is applicable. In other words,
when a traveler has reached a point where he cannot
extricate himself and vigilance on his part will not avert
the injury, his negligence in reaching that position
becomes the condition and not the proximate cause of
the injury and will not preclude a recovery. (Note
especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
G.R. No. 131588. March 27, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. GLENN DE LOS SANTOS, accused-appellant.
DECISION
DAVIDE, JR., C.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 local 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 Court, the
above-named accused, with deliberate intent to
kill, taking advantage of his driven motor vehicle,
an Isuzu Elf, and with treachery, did then and there
willfully, unlawfully and feloniously kill and inflict
mortal wounds from behind in a sudden and
unexpected manner with the use of said vehicle
members of the Philippine National Police (PNP),
undergoing a Special Training Course (Scout Class
07-95), wearing black T-shirts and black short
pants, performing an Endurance Run of 35
kilometers coming from their camp in Manolo
Fortich, Bukidnon, heading to Regional Training
Headquarters in Camp Alagar, Cagayan de Oro
City, running in a column of 3, with a 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 meters from the 1st man to the last
man, unable to defend themselves, because the
accused ran or moved his driven vehicle on the
direction of the backs of the PNP joggers in spite of
the continuous warning signals made by six of the
joggers, namely: PO1 Allan Tabacon Espana,
Waldon Sinda Sacro, Lemuel Ybanez Pangca,
Artemio Jamil Villaflor, Nardo Omasas Collantes and
Joselito Buyser Escartin, who were at the rear
echelon of said run, acting as guards, by
continuously waving their hands at the accused for
him to take the left lane of the highway, going to
the City proper, from a distance of 100 meters
away from the joggers rear portion, but which
accused failed and refused to heed; instead, he
proceeded to operate his driven vehicle (an Isuzu
Elf) on high speed directly towards the joggers,
thus forcing the rear guard[s] to throw themselves
to [a] nearby canal, to avoid injuries, then hitting,
bumping, or ramming the first four (4) victims,
causing the bodies to be thrown towards the
windshields of said Isuzu Elf, breaking said
windshield, and upon being aware that bodies of
the victims flew on the windshield of his driven
vehicle, instead of applying his brake, continued to
 travel on a high speed, this time putting off its
headlights, thus hitting the succeeding joggers on
said 1st line, as a result thereof the following were
killed on the spot:
1. Vincent Labis Rosal 7. Antonio Flores Lasco
2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
6. Arnulfo Limbago Jacutin 12. Rolando Paremcio
Pancito
While another trainee/victim, Antonio Palomino
Mino, died few days after the incident, while the
following eleven (11) other trainee/victims were
seriously wounded, the accused thus performing all
the acts of execution which would produce the
crime of Murder as a consequence but nevertheless
did not produce it by reason of some cause other
than said accuseds spontaneous desistance, that
is, by the timely and able medical assistance
rendered on the following victims which prevented
their death, to wit:
1. Rey Go Boquis 7. Melchor Hinlo
2. Rene Tuako Calabria 8. Noel Ganzan Oclarit
3. Nonata Ibarra Erno 9. Charito Penza Gepala
4. Rey Tamayo Estofil 10. Victor Malicse Olavo
5. Joel Rey Migue Galendez 11. Bimbo Glabe
Polboroza
6. Arman Neri Hernaiz
While the following Police Officers I (POI) sustained
minor injuries, to wit:
1. Romanito Andrada 6. Romualdo Cotor Dacera
2. Richard Canoy Caday 7. Ramil Rivas Gaisano
3. Rey Cayusa 8. Dibangkita Magandang
4. Avelino Chua 9. Martin Olivero Pelarion
5. Henry Gadis Coubeta 10. Flordicante Martin
Piligro
after which said accused thereafter escaped from
the scene of the incident, leaving behind the
victims afore-enumerated helpless.
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]
GLENNs 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 latters
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 aunts 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 Pea, and a certain Akut.[7]
After leaving GLENNs house, the group decided to
stop at Celebrity Plaza Restaurant. GLENN saw
his kumpare Danilo Cosin and the latters 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 cars 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
GLENNs 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 GLENNs testimony that
he (Crescente) went to GLENNs 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. If we are to subscribe to the trial courts
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 GLENNs 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-ASAs
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.
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 GLENNs vehicle was traversing. Worse, they were
facing the same direction as GLENNs truck such that
their backs were turned towards the oncoming vehicles
from behind.
Fourth, no convincing evidence was presented to rebut
GLENNs 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 that
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 GLENNs 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 of 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]
GLENNs offense is in failing to apply the brakes, or to
swerve his vehicle to the left or to a safe place the
moment 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.[30] Under 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.
[31]
Moreover, 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 Pangca[33] 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
sentenced to suffer an indeterminate penalty whose
minimum is within the range of the penalty next lower
in degree to that prescribed for the offense, and whose
maximum is that which could properly be imposed
taking into account the modifying
circumstances. Hence, for the complex crime of
reckless imprudence resulting in multiple homicide with
serious physical injuries and less serious physical
injuries, qualified by his failure to render assistance to
the victims, he may be sentenced to suffer an
indeterminate penalty ranging from arresto mayor in
its maximum period to prision 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 courts
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 multiple homicide with serious
physical injuries and less serious physical injuries, and
sentencing him to suffer an indeterminate penalty of
four (4) years of prision correccional, as minimum, to
ten (10) years of prision mayor, as maximum; and (2)
ten (10) counts of reckless imprudence resulting in
slight physical injuries and sentencing him, for each
count, to the penalty of two (2) months of arresto
mayor. Furthermore, the awards of death indemnity for
each group of heirs of the trainees killed are reduced to
P50,000; and the awards in favor of the other victims
are deleted. Costs against accused-appellant.
SO ORDERED.
Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, De Leon, Jr., and Sandoval-Gutierrez,
JJ., concur.
Puno, J., abroad on official business.
[A.M. No. 01-1463. March 20, 2001]
EVELYN ACUA, complainant, vs. RODOLFO A.
ALCANTARA, Sheriff IV, Regional Trial Court,
Branch 50, Villasis, Pangasinan, respondent.
DECISION
VITUG, J.:
In a verified letter-complaint, dated 27 October 1998,
complainant Evelyn Acua charged Rodolfo A. Alcantara,
Sheriff IV of the Regional Trial Court of Villasis,
Pangasinan, Branch 50, with negligence and manifest
partiality relative to his conduct in Civil Case No. V-
0413 (Mrs. Gloria R. Ocampo vs. Mrs. Evelyn Acua) for
recovery of sum of money with prayer for preliminary
attachment. The trial court, on 23 December 1997,
granted the preliminary attachment prayed for by
plaintiff Ocampo. The writ was thereupon issued on the
two flatboats of herein complainant Acua.
Complainant averred that, in implementing the writ,
respondent sheriff had failed to take the necessary
precautions in protecting the attached
property. Respondent entrusted the flatboats to a
relative of plaintiff Ocampo under whose care one of
the flatboats submerged. Later, the flatboats were
turned over by respondent to the Philippine Coast
Guard of Sual, Pangasinan, in which custody the
flatboats were totally damaged due to several
typhoons that visited the area.
Respondent explained, when required to comment,
that when he implemented the writ of attachment, the
flatboats were not seaworthy. Initially, he sought the
assistance of the Philippine Coast Guard of Sual,
Pangasinan, in safekeeping the flatboats but the Coast
Guard refused to accept such custody without a court
order. Meanwhile, respondent was constrained to dock
the flatboats at the Sual port, tied them to a bamboo
post and entrusted them to a son of plaintiff Ocampo
although the keys were kept by the latter. Sometime in
May, 1998, after being informed that one of the
flatboats had sunk, he asked for a court order to have
the Philippine Coast Guard take possession of the
flatboats. The court directed accordingly. Respondent
implemented the order of the trial court, dated 05 June
1998, by hiring men at his own expense to lift the
submerged flatboat and by depositing the two flatboats
with the Philippine Coast Guard in Sual, Pangasinan. On
18 September 1998, respondent received a request
from the Philippine Coast Guard to transfer the
flatboats to a safer place to prevent them from further
deteriorating. Before he could act on the request,
however, typhoons Gading, Illiang and Loleng struck
the place and destroyed the flatboats.
Respondent admitted having initially turned over the
custody of the boats to the son of the plaintiff but that
he did so only because the Philippine Coast Guard had
then refused to render assistance to him; otherwise, he
contended, he had taken all the necessary measures to
protect the attached property.
The case was referred by the Court to the Office of the
Court Administrator (OCA) for evaluation, report and
recommendation. Eventually, the OCA came out with
its evaluation, report and recommendation; it said:
The complaint is partly meritorious.
In Tantingco vs. Aguilar (81 SCRA 599, 604) this Court
held that:
Having taken possession of the property under the
writ of attachment, it was respondents duty to
protect the property from damages or loss. The
respondent was bound to exercise ordinary and
reasonable care for the preservation of the
properties.
More to the point is the case of National Bureau of
Investigation vs. Tuliao (270 SCRA 351, 356). In this
case, this Court citing the case of Walker vs. McMicking
(14 Phil. 688, 673) said:
xxx A verbal declaration of seizure or service of a
writ of attachment is not sufficient. There must be
an actual taking of possession and placing of the
attached property under the control of the officer
or someone representing him. (Hallester vs.
Goodale, 8 Cann., 332, 21 Am. Dec., 674; Jones vs.
Hoard, 99 Ga., 451, 59 Am. St. Rep., 231)
We believe that xxx to constitute a valid levy or
attachment, the officer levying it must take actual
possession of the property attached as far as xxx
practicable (under the circumstances). He must put
himself in a position to, and must assert and, in
fact, enforce a dominion over the property adverse
to and exclusive of the attachment debtor and such
property must be in his substantial presence and
possession (Corniff vs. Cock, 95 Ga., 61, 51 Am. St.
Rep. 55, 61) Of course, this does not mean that the
attaching officer may not, under an arrangement
satisfactory to himself, put anyone in possession of
the property for the purpose of guarding it, but he
can not in any way relieve himself from liability to
the parties interested in said attachment.
Applying the above-quoted principle to the instant
case, it is apparent that respondent was negligent in
taking care of the boats because he turned over
possession thereof to the son of the plaintiff. His reason
that the Coast Guard did not accept the boats because
he had no court order can not exonerate him. In view of
the Coast Guards refusal, what respondent should have
done under the circumstances was to assign a
disinterested party, at the expense of the plaintiff, to
take care of the boats. Even then, this error could have
been rectified if respondent immediately asked the
court for an order to transfer custody of the boats to
the Coast Guard. Respondent did this only when one of
the boats had already sunk. We, however, believe that
this is the only extent of respondents
liability. Respondent was able to eventually transfer the
possession of the boats to the Coast Guard in whose
custody the boats were totally destroyed by
storms. The loss of the boats cannot thus be blamed
entirely on respondent but it can not be denied that his
initial action may have contributed to the deterioration
of the sea-worthiness of the boats.
The OCA recommended that respondent be FINED in
the amount of P5,000.00 for negligence in the
performance of his duties.
The Court adopts the recommendation of the Office of
the Court Administrator.
The OCA did not err in holding that respondent sheriff
was guilty of negligence. The refusal of the Philippine
Coast guard to initially take custody of the flatboats
should have prompted him to forthwith ask the trial
court for an order to have the custody of the flatboats
transferred to the Philippine Coast Guard. He delayed
in seeking for such a court order. But while respondent
failed to thusly implement the writ of preliminary
attachment and to safekeep the property in his
custody,[1] it would appear that he exerted efforts to
protect the flatboats. The eventual deterioration and
loss of the boats had, in fact, been caused by
calamities beyond his control. Given the circumstances,
by and large extant from the records of the case, the
Court deems it appropriate to impose on respondent a
fine but on the reduced amount of from P5,000.00
recommended by the OCA to P3,000.00.
WHEREFORE, the Court, finding Rodolfo A. Alcantara,
Sheriff IV of the Regional Trial Court of Villasis,
Pangasinan, Branch 50, guilty of simple negligence,
hereby imposes upon him a FINE of THREE THOUSAND
(P3,000.00) PESOS but warns that a repetition of the
same or like infraction will be dealt with severely.
SO ORDERED.
Melo (Chairman), Panganiban, Gonzaga-
Reyes, and Sandoval-Gutierrez, JJ., concur.
[G.R. No. 143133. June 5, 2002]
BELGIAN OVERSEAS CHARTERING AND SHIPPING
N.V. and JARDINE DAVIES TRANSPORT SERVICES,
INC., petitioners, vs. PHILIPPINE FIRST
INSURANCE CO., INC., respondent.
DECISION
PANGANIBAN, J.:
Proof of the delivery of goods in good order to a
common carrier and of their arrival in bad order at their
destination constitutes prima facie fault or negligence
on the part of the carrier. If no adequate explanation is
given as to how the loss, the destruction or the
deterioration of the goods happened, the carrier shall
be held liable therefor.
Statement of the Case
Before us is a Petition for Review under Rule 45 of the
Rules of Court, assailing the July 15, 1998
Decision[1] and the May 2, 2000 Resolution[2] of the
Court of Appeals[3] (CA) in CA-GR CV No. 53571. The
decretal portion of the Decision reads as follows:
WHEREFORE, in the light of the foregoing
disquisition, the decision appealed from is hereby
REVERSED and SET ASIDE. Defendants-appellees
are ORDERED to jointly and severally pay plaintiffs-
appellants the following:
1) FOUR Hundred Fifty One Thousand Twenty-
Seven Pesos and 32/100 (P451,027.32) as
actual damages, representing the value of the
damaged cargo, plus interest at the legal rate
from the time of filing of the complaint on July
25, 1991, until fully paid;
2) Attorneys fees amounting to 20% of the
claim; and
3) Costs of suit.[4]
The assailed Resolution denied petitioners
Motion for Reconsideration.
The CA reversed the Decision of the Regional Trial
Court (RTC) of Makati City (Branch 134), which had
disposed as follows:
WHEREFORE, in view of the foregoing,
judgment is hereby rendered, dismissing the
complaint, as well as defendants counterclaim.
[5]
The Facts
The factual antecedents of the case are summarized by
the Court of Appeals in this wise:
On June 13, 1990, CMC Trading A.G. shipped on
board the MN Anangel Sky at Hamburg, Germany
242 coils of various Prime Cold Rolled Steel sheets
for transportation to Manila consigned to the
Philippine Steel Trading Corporation. On July 28,
1990, MN Anangel Sky arrived at the port of Manila
and, within the subsequent days, discharged the
subject cargo. Four (4) coils were found to be in
bad order B.O. Tally sheet No. 154974. Finding the
four (4) coils in their damaged state to be unfit for
the intended purpose, the consignee Philippine
Steel Trading Corporation declared the same as
total loss.
Despite receipt of a formal demand, defendants-
appellees refused to submit to the consignees
claim. Consequently, plaintiff-appellant paid the
consignee five hundred six thousand eighty six &
50/100 pesos (P506,086.50), and was subrogated
to the latters rights and causes of action against
defendants-appellees. Subsequently, plaintiff-
appellant instituted this complaint for recovery of
the amount paid by them, to the consignee as
insured.
Impugning the propriety of the suit against them,
defendants-appellees imputed that the damage
and/or loss was due to pre-shipment damage, to
the inherent nature, vice or defect of the goods, or
to perils, danger and accidents of the sea, or to
insufficiency of packing thereof, or to the act or
omission of the shipper of the goods or their
representatives. In addition thereto, defendants-
appellees argued that their liability, if there be any,
should not exceed the limitations of liability
provided for in the bill of lading and other pertinent
laws. Finally, defendants-appellees averred that, in
any event, they exercised due diligence and
foresight required by law to prevent any
damage/loss to said shipment.[6]
Ruling of the Trial Court
The RTC dismissed the Complaint because respondent
had failed to prove its claims with the quantum of proof
required by law.[7]
It likewise debunked petitioners counterclaim, because
respondents suit was not manifestly frivolous or
primarily intended to harass them.[8]
Ruling of the Court of Appeals
In reversing the trial court, the CA ruled that petitioners
were liable for the loss or the damage of the goods
shipped, because they had failed to overcome the
presumption of negligence imposed on common
carriers.
The CA further held as inadequately proven petitioners
claim that the loss or the deterioration of the goods
was due to pre-shipment damage.[9] It likewise opined
that the notation metal envelopes rust stained and
slightly dented placed on the Bill of Lading had not
been the proximate cause of the damage to the four
(4) coils.[10]
As to the extent of petitioners liability, the CA held that
the package limitation under COGSA was not
applicable, because the words L/C No. 90/02447
indicated that a higher valuation of the cargo had been
declared by the shipper. The CA, however, affirmed the
award of attorneys fees.
Hence, this Petition.[11]
Issues
In their Memorandum, petitioners raise the following
issues for the Courts consideration:
I goods they transported deteriorated or got lost or
Whether or not plaintiff by presenting only one witness
who has never seen the subject shipment and whose
testimony is purely hearsay is sufficient to pave the
way for the applicability of Article 1735 of the Civil
Code;
II
Whether or not the consignee/plaintiff filed the required
notice of loss within the time required by law;
III
Whether or not a notation in the bill of lading at the
time of loading is sufficient to show pre-shipment
damage and to exempt herein defendants from
liability;
IV
Whether or not the PACKAGE LIMITATION of liability
under Section 4 (5) of COGSA is applicable to the case
at bar.[12]
In sum, the issues boil down to three:
1. Whether petitioners have overcome the presumption
of negligence of a common carrier
2. Whether the notice of loss was timely filed
3. Whether the package limitation of liability is
applicable
This Courts Ruling
The Petition is partly meritorious.
First Issue:
Proof of Negligence
Petitioners contend that the presumption of fault
imposed on common carriers should not be applied on
the basis of the lone testimony offered by private
respondent. The contention is untenable.
Well-settled is the rule that common carriers, from the
nature of their business and for reasons of public
policy, are bound to observe extraordinary
diligence and vigilance with respect to the safety of the
goods and the passengers they transport. [13] Thus,
common carriers are required to render service with
the greatest skill and foresight and to use all
reason[a]ble means to ascertain the nature and
characteristics of the goods tendered for shipment, and
to exercise due care in the handling and stowage,
including such methods as their nature requires. [14] The
extraordinary responsibility lasts from the time the
goods are unconditionally placed in the possession of
and received for transportation by the carrier until they
are delivered, actually or constructively, to the
consignee or to the person who has a right to receive
them.[15]
This strict requirement is justified by the fact that,
without a hand or a voice in the preparation of such
contract, the riding public enters into a contract of
transportation with common carriers. [16] Even if it wants
to, it cannot submit its own stipulations for their
approval.[17] Hence, it merely adheres to the agreement
prepared by them.
Owing to this high degree of diligence required of
them, common carriers, as a general rule, are
presumed to have been at fault or negligent if the
destroyed.[18] That is, unless they prove that they
exercised extraordinary diligence in transporting the
goods.[19] In order to avoid responsibility for any loss or
damage, therefore, they have the burden of proving
that they observed such diligence.[20]
However, the presumption of fault or negligence will
not arise[21] if the loss is due to any of the following
causes: (1) flood, storm, earthquake, lightning, or other
natural disaster or calamity; (2) an act of the public
enemy in war, whether international or civil; (3) an act
or omission of the shipper or owner of the goods; (4)
the character of the goods or defects in the packing or
the container; or (5) an order or act of competent
public authority.[22] This is a closed list. If the cause of
destruction, loss or deterioration is other than the
enumerated circumstances, then the carrier is liable
therefor.[23]
Corollary to the foregoing, mere proof of delivery of the
goods in good order to a common carrier and of their
arrival in bad order at their destination constitutes a
prima facie case of fault or negligence against the
carrier. If no adequate explanation is given as to how
the deterioration, the loss or the destruction of the
goods happened, the transporter shall be held
responsible.[24]
That petitioners failed to rebut the prima facie
presumption of negligence is revealed in the case at
bar by a review of the records and more so by the
evidence adduced by respondent.[25]
First, as stated in the Bill of Lading, petitioners received
the subject shipment in good order and condition in
Hamburg, Germany.[26]
Second, prior to the unloading of the cargo, an
Inspection Report[27] prepared and signed by
representatives of both parties showed the steel bands
broken, the metal envelopes rust-stained and heavily
buckled, and the contents thereof exposed and rusty.
Third, Bad Order Tally Sheet No. 154979[28] issued by
Jardine Davies Transport Services, Inc., stated that the
four coils were in bad order and condition. Normally, a
request for a bad order survey is made in case there is
an apparent or a presumed loss or damage.[29]
Fourth, the Certificate of Analysis[30] stated that, based
on the sample submitted and tested, the steel sheets
found in bad order were wet with fresh water.

Fifth, petitioners -- in a letter[31] addressed to the
Philippine Steel Coating Corporation and dated October
12, 1990 -- admitted that they were aware of the
condition of the four coils found in bad order and
condition.
These facts were confirmed by Ruperto Esmerio, head
checker of BM Santos Checkers Agency. Pertinent
portions of his testimony are reproduce hereunder:
Q. Mr. Esmerio, you mentioned that you are a Head
Checker. Will you inform the Honorable Court with
what company you are connected?
A. BM Santos Checkers Agency, sir.
Q. How is BM Santos Checkers Agency related or
connected with defendant Jardine Davies Transport
Services?
A. It is the company who contracts the checkers,
sir.
Q. You mentioned that you are a Head Checker, will
you inform this Honorable Court your duties and
responsibilities?
A. I am the representative of BM Santos on board
the vessel, sir, to supervise the discharge of
cargoes.
xxxxxxxxx
Q. On or about August 1, 1990, were you still
connected or employed with BM Santos as a Head
Checker?
A. Yes, sir.
Q. And, on or about that date, do you recall having
attended the discharging and inspection of cold
steel sheets in coil on board the MV/AN ANGEL
SKY?
A. Yes, sir, I was there.
xxxxxxxxx
Q. Based on your inspection since you were also
present at that time, will you inform this Honorable
Court the condition or the appearance of the bad
order cargoes that were unloaded from the
MV/ANANGEL SKY?
ATTY. MACAMAY:
Objection, Your Honor, I think the document itself
reflects the condition of the cold steel sheets and
the best evidence is the document itself, Your
Honor that shows the condition of the steel sheets.
COURT:
Let the witness answer.
A. The scrap of the cargoes is broken already and
the rope is loosen and the cargoes are dent on the
sides.[32]
All these conclusively prove the fact of shipment in
good order and condition and the consequent damage
to the four coils while in the possession of petitioner,
[33]
who notably failed to explain why.[34]
Further, petitioners failed to prove that they observed
the extraordinary diligence and precaution which the
law requires a common carrier to know and to follow, to
avoid damage to or destruction of the goods entrusted
to it for safe carriage and delivery.[35]
True, the words metal envelopes rust stained and
slightly dented were noted on the Bill of Lading;
however, there is no showing that petitioners exercised
due diligence to forestall or lessen the loss. [36]Having
been in the service for several years, the master of the
vessel should have known at the outset that metal
envelopes in the said state would eventually
deteriorate when not properly stored while in transit.
[37]
Equipped with the proper knowledge of the nature
of steel sheets in coils and of the proper way of
transporting them, the master of the vessel and his
crew should have undertaken precautionary measures
to avoid possible deterioration of the cargo. But none
of these measures was taken.[38] Having failed to
discharge the burden of proving that they have
exercised the extraordinary diligence required by law,
petitioners cannot escape liability for the damage to
the four coils.[39]
In their attempt to escape liability, petitioners further
contend that they are exempted from liability under
Article 1734(4) of the Civil Code. They cite the notation
metal envelopes rust stained and slightly dented
printed on the Bill of Lading as evidence that the
character of the goods or defect in the packing or the
containers was the proximate cause of the damage. We
are not convinced.
From the evidence on record, it cannot be reasonably
concluded that the damage to the four coils was due to
the condition noted on the Bill of Lading. [40] The
aforecited exception refers to cases when goods are
lost or damaged while in transit as a result of the
natural decay of perishable goods or the fermentation
or evaporation of substances liable therefor, the
necessary and natural wear of goods in transport,
defects in packages in which they are shipped, or the
natural propensities of animals. [41] None of these is
present in the instant case.
Further, even if the fact of improper packing was
known to the carrier or its crew or was apparent upon
ordinary observation, it is not relieved of liability for
loss or injury resulting therefrom, once it accepts the
goods notwithstanding such condition.[42] Thus,
petitioners have not successfully proven the
application of any of the aforecited exceptions in the
present case.[43]
Second Issue:
Notice of Loss
Petitioners claim that pursuant to Section 3, paragraph
6 of the Carriage of Goods by Sea Act [44] (COGSA),
respondent should have filed its Notice of Loss within
three days from delivery. They assert that the cargo
was discharged on July 31, 1990, but that respondent
filed its Notice of Claim only on September 18, 1990. [45]
We are not persuaded. First, the above-cited provision
of COGSA provides that the notice of claim need not be
given if the state of the goods, at the time of their
receipt, has been the subject of a joint inspection or
survey. As stated earlier, prior to unloading the cargo,
an Inspection Report[46] as to the condition of the goods
was prepared and signed by representatives of both
parties.[47]
Second, as stated in the same provision, a failure to file
a notice of claim within three days will not bar recovery
if it is nonetheless filed within one year.[48] This one-
year prescriptive period also applies to the shipper, the
consignee, the insurer of the goods or any legal holder
of the bill of lading.[49]
In Loadstar Shipping Co., Inc. v. Court of Appeals, [50] we
ruled that a claim is not barred by prescription as long
as the one-year period has not lapsed. Thus, in the
words of the ponente, Chief Justice Hilario G. Davide Jr.:
Inasmuch as the neither the Civil Code nor the
Code of Commerce states a specific prescriptive
period on the matter, the Carriage of Goods by Sea
Act (COGSA)--which provides for a one-year period
of limitation on claims for loss of, or damage to,
cargoes sustained during transit--may be applied
suppletorily to the case at bar.
In the present case, the cargo was discharged on July
31, 1990, while the Complaint[51] was filed by
respondent on July 25, 1991, within the one-year
prescriptive period.
Third Issue:
Package Limitation
Assuming arguendo they are liable for respondents
claims, petitioners contend that their liability should be
limited to US$500 per package as provided in the Bill of
Lading and by Section 4(5)[52] of COGSA.[53]
On the other hand, respondent argues that Section 4(5)
of COGSA is inapplicable, because the value of the
subject shipment was declared by petitioners
beforehand, as evidenced by the reference to and the
insertion of the Letter of Credit or L/C No. 90/02447 in
the said Bill of Lading.[54]
A bill of lading serves two functions. First, it is a receipt
for the goods shipped.[55] Second, it is a contract by
which three parties -- namely, the shipper, the carrier,
and the consignee -- undertake specific responsibilities
and assume stipulated obligations.[56] In a nutshell, the
acceptance of the bill of lading by the shipper and the
consignee, with full knowledge of its contents, gives
rise to the presumption that it constituted a perfected
and binding contract.[57]
Further, a stipulation in the bill of lading limiting to a
certain sum the common carriers liability for loss or
destruction of a cargo -- unless the shipper or owner
declares a greater value[58] -- is sanctioned by law.
[59]
There are, however, two conditions to be satisfied:
(1) the contract is reasonable and just under the
circumstances, and (2) it has been fairly and freely
agreed upon by the parties. [60] The rationale for, this
rule is to bind the shippers by their agreement to the
value (maximum valuation) of their goods.[61]
It is to be noted, however, that the Civil Code does not
limit the liability of the common carrier to a fixed
amount per package.[62] In all matters not regulated by
the Civil Code, the right and the obligations of common
carriers shall be governed by the Code of Commerce
and special laws.[63] Thus, the COGSA, which is
suppletory to the provisions of the Civil Code,
supplements the latter by establishing a statutory
provision limiting the carriers liability in the absence of
a shippers declaration of a higher value in the bill of
lading.[64] The provisions on limited liability are as much
a part of the bill of lading as though physically in it and
as though placed there by agreement of the parties.[65]
In the case before us, there was no stipulation in the
Bill of Lading[66] limiting the carriers liability. Neither did
the shipper declare a higher valuation of the goods to
be shipped. This fact notwithstanding, the insertion of
the words L/C No. 90/02447 cannot be the basis for
petitioners liability.
First, a notation in the Bill of Lading which indicated the
amount of the Letter of Credit obtained by the shipper
for the importation of steel sheets did not effect a
declaration of the value of the goods as required by the
bill.[67] That notation was made only for the
convenience of the shipper and the bank processing
the Letter of Credit.[68]
Second, in Keng Hua Paper Products v. Court of
Appeals,[69] we held that a bill of lading was separate
from the Other Letter of Credit arrangements. We ruled
thus:
(T)he contract of carriage, as stipulated in the bill
of lading in the present case, must be treated
independently of the contract of sale between the
seller and the buyer, and the contract of issuance
of a letter of credit between the amount of goods
described in the commercial invoice in the contract
of sale and the amount allowed in the letter of
credit will not affect the validity and enforceability
of the contract of carriage as embodied in the bill
of lading. As the bank cannot be expected to look
beyond the documents presented to it by the seller
pursuant to the letter of credit, neither can the
carrier be expected to go beyond the
representations of the shipper in the bill of lading
and to verify their accuracy vis--vis the commercial
invoice and the letter of credit. Thus, the
discrepancy between the amount of goods
indicated in the invoice and the amount in the bill
of lading cannot negate petitioners obligation to
private respondent arising from the contract of
transportation.[70]
In the light of the foregoing, petitioners liability should
be computed based on US$500 per package and not on
the per metric ton price declared in the Letter of Credit.
[71]
In Eastern Shipping Lines, Inc. v. Intermediate
Appellate Court[72] we explained the meaning
of package:
When what would ordinarily be considered
packages are shipped in a container supplied by
the carrier and the number of such units is
disclosed in the shipping documents, each of those
units and not the container constitutes the package
referred to in the liability limitation provision of
Carriage of Goods by Sea Act.
Considering, therefore, the ruling in Eastern Shipping
Lines and the fact that the Bill of Lading clearly
disclosed the contents of the containers, the number of
units, as well as the nature of the steel sheets, the four
damaged coils should be considered as the shipping
unit subject to the US$500 limitation.
WHEREFORE, the Petition is partly granted and the
assailed Decision MODIFIED. Petitioners liability is
reduced to US$2,000 plus interest at the legal rate of
six percent from the time of the filing of the Complaint
on July 25, 1991 until the finality of this Decision, and
12 percent thereafter until fully paid. No
pronouncement as to costs.
SO ORDERED.
Sandoval-Gutierrez, and Carpio, JJ., concur.
Puno, J., (Chairman), abroad, on official leave.
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL, petitioners, vs. THE INTERMEDIATE
APPELLATE COURT and LEONARDO
DIONISIO, respondents.
FELICIANO, J:
In the early morning of 15 November 1975 at about
1:30 a.m. private respondent Leonardo Dionisio was
on his way home he lived in 1214-B Zamora Street,
Bangkal, Makati from a cocktails-and-dinner meeting
with his boss, the general manager of a marketing
corporation. During the cocktails phase of the evening,
Dionisio had taken "a shot or two" of liquor. Dionisio
was driving his Volkswagen car and had just crossed
the intersection of General Lacuna and General Santos
Streets at Bangkal, Makati, not far from his home, and
was proceeding down General Lacuna Street, when his
car headlights (in his allegation) suddenly failed. He
switched his headlights on "bright" and thereupon he
saw a Ford dump truck looming some 2-1/2 meters
away from his car. The dump truck, owned by and
registered in the name of petitioner Phoenix
Construction Inc. ("Phoenix"), was parked on the right
hand side of General Lacuna Street (i.e., on the right
hand side of a person facing in the same direction
toward which Dionisio's car was proceeding), facing the
oncoming traffic. The dump truck was parked askew
(not parallel to the street curb) in such a manner as to
stick out onto the street, partly blocking the way of
oncoming traffic. There were no lights nor any so-called
"early warning" reflector devices set anywhere near the
dump truck, front or rear. The dump truck had earlier
that evening been driven home by petitioner Armando
U. Carbonel, its regular driver, with the permission of
his employer Phoenix, in view of work scheduled to be
carried out early the following morning, Dionisio
claimed that he tried to avoid a collision by swerving
his car to the left but it was too late and his car
smashed into the dump truck. As a result of the
collision, Dionisio suffered some physical injuries
including some permanent facial scars, a "nervous
breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the
Court of First Instance of Pampanga basically claiming
that the legal and proximate cause of his injuries was
the negligent manner in which Carbonel had parked
the dump truck entrusted to him by his employer
Phoenix. Phoenix and Carbonel, on the other hand,
countered that the proximate cause of Dionisio's
injuries was his own recklessness in driving fast at the
time of the accident, while under the influence of
liquor, without his headlights on and without a curfew
pass. Phoenix also sought to establish that it had
exercised due rare in the selection and supervision of
the dump truck driver.
The trial court rendered judgment in favor of Dionisio
and against Phoenix and Carbonel and ordered the
latter:
(1) To pay plaintiff jointly and severally the sum of
P 15,000.00 for hospital bills and the replacement
of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of
P 1,50,000.-00 as loss of expected income for
plaintiff brought about the accident in controversy
and which is the result of the negligence of the
defendants;
(3) To pay the plaintiff jointly and severally the sum
of P 10,000. as moral damages for the unexpected
and sudden withdrawal of plaintiff from his lifetime
career as a marketing man; mental anguish,
wounded feeling, serious anxiety, social
humiliation, besmirched reputation, feeling of
economic insecurity, and the untold sorrows and
frustration in life experienced by plaintiff and his
family since the accident in controversy up to the
present time;
(4) To pay plaintiff jointly and severally the sum of
P 10,000.00 as damages for the wanton disregard
of defendants to settle amicably this case with the
plaintiff before the filing of this case in court for a
smaller amount.
(5) To pay the plaintiff jointly and severally the sum
of P 4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate
Appellate Court. That court in CA-G.R. No. 65476
affirmed the decision of the trial court but modified the
award of damages to the following extent:
1. The award of P15,000.00 as compensatory
damages was reduced to P6,460.71, the latter
being the only amount that the appellate court
 found the plaintiff to have proved as actually
sustained by him;
2. The award of P150,000.00 as loss of expected
income was reduced to P100,000.00, basically
because Dionisio had voluntarily resigned his job
such that, in the opinion of the appellate court, his
loss of income "was not solely attributable to the
accident in question;" and
3. The award of P100,000.00 as moral damages
was held by the appellate court as excessive and
unconscionable and hence reduced to P50,000.00.
The award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs
remained untouched.
This decision of the Intermediate Appellate Court is
now before us on a petition for review.
Both the trial court and the appellate court had made
fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General
Lacuna Street on the basis of which both courts drew
the inference that there was negligence on the part of
Carbonel, the dump truck driver, and that this
negligence was the proximate cause of the accident
and Dionisio's injuries. We note, however, that both
courts failed to pass upon the defense raised by
Carbonel and Phoenix that the true legal and proximate
cause of the accident was not the way in which the
dump truck had been parked but rather the reckless
way in which Dionisio had driven his car that night
when he smashed into the dump truck. The
Intermediate Appellate Court in its questioned decision
casually conceded that Dionisio was "in some way,
negligent" but apparently failed to see the relevance of
Dionisio's negligence and made no further mention of
it. We have examined the record both before the trial
court and the Intermediate Appellate Court and we find
that both parties had placed into the record sufficient
evidence on the basis of which the trial court and the
appellate court could have and should have made
findings of fact relating to the alleged reckless manner
in which Dionisio drove his car that night. The
petitioners Phoenix and Carbonel contend that if there
was negligence in the manner in which the dump truck
was parked, that negligence was merely a "passive and
static condition" and that private respondent Dionisio's
recklessness constituted an intervening, efficient cause
determinative of the accident and the injuries he
sustained. The need to administer substantial justice as
between the parties in this case, without having to
remand it back to the trial court after eleven years,
compels us to address directly the contention put
forward by the petitioners and to examine for ourselves
the record pertaining to Dionisio's alleged negligence
which must bear upon the liability, or extent of liability,
of Phoenix and Carbonel.
There are four factual issues that need to be looked
into: (a) whether or not private respondent Dionisio
had a curfew pass valid and effective for that eventful
night; (b) whether Dionisio was driving fast or speeding
just before the collision with the dump truck; (c)
whether Dionisio had purposely turned off his car's
headlights before contact with the dump truck or
whether those headlights accidentally malfunctioned
moments before the collision; and (d) whether Dionisio
was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is
clear that no curfew pass was found on the person of
Dionisio immediately after the accident nor was any
found in his car. Phoenix's evidence here consisted of
the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center for
emergency treatment immediately after the accident.
At the Makati Medical Center, a nurse took off
Dionisio's clothes and examined them along with the
contents of pockets together with Patrolman
Cuyno. 1 Private respondent Dionisio was not able to
produce any curfew pass during the trial. Instead, he
offered the explanation that his family may have
misplaced his curfew pass. He also offered a
certification (dated two years after the accident) issued
by one Major Benjamin N. Libarnes of the Zone
Integrated Police Intelligence Unit of Camp Olivas, San
Fernando, Pampanga, which was said to have authority
to issue curfew passes for Pampanga and Metro Manila.
This certification was to the effect that private
respondent Dionisio had a valid curfew pass. This
certification did not, however, specify any pass serial
number or date or period of effectivity of the supposed
curfew pass. We find that private respondent Dionisio
was unable to prove possession of a valid curfew pass
during the night of the accident and that the
preponderance of evidence shows that he did not have
such a pass during that night. The relevance of
possession or 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 accident. The Intermediate Appellate Court expressly
speeding home that night both the trial court and found that the headlights of Dionisio's car went off as
the appellate court were completely silent. 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
The defendants in the trial court introduced the
resident in the area) knew was not far away from the
testimony of Patrolman Cuyno who was at the scene of
intersection. We believe that the petitioners' theory is a
the accident almost immediately after it occurred, the
more credible explanation than that offered by private
police station where he was based being barely 200
respondent Dionisio i.e., that he had his headlights
meters away. Patrolman Cuyno testified that people
on but that, at the crucial moment, these had in some
who had gathered at the scene of the accident told him
mysterious if convenient way malfunctioned and gone
that Dionisio's car was "moving fast" and did not have
off, although he succeeded in switching his lights on
its headlights on. 2 Dionisio, on the other hand, claimed
again at "bright" split seconds before contact with the
that he was travelling at a moderate speed at 30
dump truck.
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
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
Private respondent Dionisio asserts that Patrolman
liquor at the time he was taken from his smashed car
Cuyno's testimony was hearsay and did not fag within
and brought to the Makati Medical Center in an
any of the recognized exceptions to the hearsay rule
unconscious condition. 7 This testimony has to be taken
since the facts he testified to were not acquired by him
in conjunction with the admission of Dionisio that he
through official information and had not been given by
had taken "a shot or two" of liquor before dinner with
the informants pursuant to any duty to do so. Private
his boss that night. We do not believe that this
respondent's objection fails to take account of the fact
evidence is sufficient to show that Dionisio was so
that the testimony of Patrolman Cuyno is admissible
heavily under the influence of liquor as to constitute his
not under the official records exception to the hearsay
driving a motor vehicle per se an act of reckless
rule 4 but rather as part of the res gestae. 5 Testimonial
imprudence. 8There simply is not enough evidence to
evidence under this exception to the hearsay rule
show how much liquor he had in fact taken and the
consists of excited utterances made on the occasion of
effects of that upon his physical faculties or upon his
an occurrence or event sufficiently startling in nature
judgment or mental alertness. We are also aware that
so as to render inoperative the normal reflective
"one shot or two" of hard liquor may affect different
thought processes of the observer and hence made as
people differently.
a spontaneous reaction to the occurrence or event, and
not the result of reflective thought. 6

The conclusion we draw from the factual circumstances

outlined above is that private respondent Dionisio was
We think that an automobile speeding down a street
negligent the night of the accident. He was hurrying
and suddenly smashing into a stationary object in the
home that night and driving faster than he should have
dead of night is a sufficiently startling event as to
been. Worse, he extinguished his headlights at or near
evoke spontaneous, rather than reflective, reactions
the intersection of General Lacuna and General Santos
from observers who happened to be around at that
Streets and thus did not see the dump truck that was
time. The testimony of Patrolman Cuyno was therefore
parked askew and sticking out onto the road lane.
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 Nonetheless, we agree with the Court of First Instance
Dionisio was travelling just before impact with the and the Intermediate Appellate Court that the legal and
Phoenix dump truck. 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
A third related issue is whether Dionisio purposely
negligence on the one hand and the accident and
turned off his headlights, or whether his headlights
respondent's injuries on the other hand, is quite clear.
accidentally malfunctioned, just moments before the
Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and We believe, secondly, that the truck driver's negligence
foreseeable consequence of the truck driver's far from being a "passive and static condition" was
negligence. 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
The petitioners, however, urge that the truck driver's
improper parking of the dump truck created an
negligence was merely a "passive and static condition"
unreasonable risk of injury for anyone driving down
and that private respondent Dionisio's negligence was
General Lacuna Street and for having so created this
an "efficient intervening cause and that consequently
risk, the truck driver must be held responsible. In our
Dionisio's negligence must be regarded as the legal
view, Dionisio's negligence, although later in point of
and proximate cause of the accident rather than the
time than the truck driver's negligence and therefore
earlier negligence of Carbonel. We note that the
closer to the accident, was not an efficient intervening
petitioners' arguments are drawn from a reading of
or independent cause. What the Petitioners describe as
some of the older cases in various jurisdictions in the
an "intervening cause" was no more than a foreseeable
United States but we are unable to persuade ourselves
consequent manner which the truck driver had parked
that these arguments have any validity for our
the dump truck. In other words, the petitioner truck
jurisdiction. We note, firstly, that even in the United
driver owed a duty to private respondent Dionisio and
States, the distinctions between "cause" and
others similarly situated not to impose upon them the
"condition" which the 'petitioners would have us adopt
very risk the truck driver had created. Dionisio's
have already been "almost entirely discredited."
negligence was not of an independent and
Professors and Keeton make this quite clear:
overpowering nature as to cut, as it were, the chain of
causation in fact between the improper parking of the
Cause and condition. Many courts have sought to dump truck and the accident, nor to sever the juris
distinguish between the active "cause" of the harm vinculum of liability. It is helpful to quote once more
and the existing "conditions" upon which that from Professor and Keeton:
cause operated. If the defendant has created only
a passive static condition which made the damage
Foreseeable Intervening Causes. If the intervening
possible, the defendant is said not to be liable. But
cause is one which in ordinary human experience
so far as the fact of causation is concerned, in the
is reasonably to be anticipated or one which the
sense of necessary antecedents which have played
defendant has reason to anticipate under the
an important part in producing the result it is quite
particular circumstances, the defendant may be
impossible to distinguish between active forces
negligence among other reasons, because of
and passive situations, particularly since, as is
failure to guard against it; or the defendant may be
invariably the case, the latter are the result of
negligent only for that reason. Thus one who sets a
other active forces which have gone before. The
fire may be required to foresee that an ordinary,
defendant who spills gasoline about the premises
usual and customary wind arising later wig spread
creates a "condition," but the act may be culpable
it beyond the defendant's own property, and
because of the danger of fire. When a spark ignites
therefore to take precautions to prevent that event.
the gasoline, the condition has done quite as much
The person who leaves the combustible or
to bring about the fire as the spark; and since that
explosive material exposed in a public place may
is the very risk which the defendant has created,
foresee the risk of fire from some independent
the defendant will not escape responsibility. Even
source. ... In all of these cases there is an
the lapse of a considerable time during which the
intervening cause combining with the defendant's
"condition" remains static will not necessarily
conduct to produce the result and in each case the
affect liability; one who digs a trench in the
defendant's negligence consists in failure to
highway may still be liable to another who fans into
protect the plaintiff against that very risk.
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 Obviously the defendant cannot be relieved from
defendant have come to rest in a position of liability by the fact that the risk or a substantial
apparent safety, and some new force and important part of the risk, to which the
intervenes. But even in such cases, it is not the defendant has subjected the plaintiff has indeed
distinction between "cause" and "condition" which come to pass. Foreseeable intervening forces are
is important but the nature of the risk and the within the scope original risk, and hence of the
character of the intervening cause. 9 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 16 in supervising its employees properly and
adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not
able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver
to bring the dump truck to his home whenever there
was work to be done early the following morning, when
coupled with the failure to show any effort on the part
of Phoenix to supervise the manner in which the dump
truck is parked when away from company premises, is
an affirmative showing of culpa in vigilando on the part
of Phoenix.
Turning to the award of damages and taking into
account the comparative negligence of private
respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are
satisfied by allocating most of the damages on a 20-80
ratio. Thus, 20% of the damages awarded by the
respondent appellate court, except the award of
P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private
respondent Dionisio; only the balance of 80% needs to
be paid by petitioners Carbonel and Phoenix who shall
be solidarity liable therefor to the former. The award of
exemplary damages and attorney's fees and costs shall
be borne exclusively by the petitioners. Phoenix is of
course entitled to reimbursement from
Carbonel. 18 We see no sufficient reason for disturbing
the reduced award of damages made by the
respondent appellate court.
WHEREFORE, the decision of the respondent appellate
court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and
moral damages private respondent Dionisio is entitled
to by 20% of such amount. Costs against the
petitioners.
SO ORDERED.
Yap (Chairman), Narvasa, Cruz, Gancayco and
Sarmiento, JJ., concur.
Melencio-Herrera, J., is on leave.
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-
appellants, vs.
METROPOLITAN WATER DISTRICT, defendant-
appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and
Juan C. Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a
government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as
attorneys' fees, for the death of their son Dominador
Ong in one of the swimming pools operated by
defendant.
Defendant admits the fact that plaintiffs' son was
drowned in one of its swimming pools but avers that
his death was caused by his own negligence or by
unavoidable accident. Defendant also avers that it had
exercised due diligence in the selection of, and
supervision over, its employees and that it had
observed the diligence required by law under the
circumstances.
After trial, the lower court found that the action of
plaintiffs is untenable and dismissed the complaint
without pronouncement as to costs. Plaintiffs took the
case on appeal directly to this Court because the
amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational
swimming pools at its Balara filters, Diliman, Quezon
City, to which people are invited and for which a
nominal fee of P0.50 for adults and P0.20 for children is
charged. The main pool it between two small pools of
oval shape known as the "Wading pool" and the
"Beginners Pool." There are diving boards in the big
pools and the depths of the water at different parts are
indicated by appropriate marks on the wall. The care
and supervision of the pools and the users thereof is
entrusted to a recreational section composed of
Simeon Chongco as chief, Armando Rule, a male nurse,
and six lifeguards who had taken the life-saving course
given by the Philippine Red Cross at the YMCA in
Manila. For the safety of its patrons, defendant has
provided the pools with a ring buoy, toy roof, towing
line, saving kit and a resuscitator. There is also a
sanitary inspector who is in charge of a clinic
established for the benefit of the patrons. Defendant
has also on display in a conspicuous place certain rules
and regulations governing the use of the pools, one of
which prohibits the swimming in the pool alone or
without any attendant. Although defendant does not
maintain a full-time physician in the swimming pool
compound, it has however a nurse and a sanitary
inspector ready to administer injections or operate the
oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student and
boy scout, and his brothers Ruben and Eusebio, went to
defendant's swimming pools. This was not the first
time that the three brothers had gone to said
natatorium for they had already been there four or five
times before. They arrived at the natatorium at about
1:45 p.m. After paying the requisite admission fee, they
immediately went to one of the small pools where the
water was shallow. At about 4:35 p.m., Dominador Ong
told his brothers that he was going to the locker room
in an adjoining building to drink a bottle of coke. Upon
hearing this, Ruben and Eusebio went to the bigger
pool leaving Dominador in the small pool and so they
did not see the latter when he left the pool to get a
bottle of coke. In that afternoon, there were two
lifeguards on duty in the pool compound, namely,
Manuel Abao and Mario Villanueva. The tour of duty of
Abao was from 8:00 to 12:00 in the morning and from
2:00 to 6:00 in the afternoon, and of Villanueva from
7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m.
Between 4:00 to 5:00 that afternoon, there were about
twenty bathers inside the pool area and Manuel Abao
was going around the pools to observe the bathers in
compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the
pool area informed a bather by the name of Andres
Hagad, Jr., that somebody was swimming under water
for quite a long time. Another boy informed lifeguard
Manuel Abao of the same happening and Abao
immediately jumped into the big swimming pool and
retrieved the apparently lifeless body of Dominador
Ong from the bottom. The body was placed at the edge
of the pool and Abao immediately applied manual
artificial respiration. Soon after, male nurse Armando
Rule came to render assistance, followed by sanitary
inspector Iluminado Vicente who, after being called by
phone from the clinic by one of the security guards,
boarded a jeep carrying with him the resuscitator and a
medicine kit, and upon arriving he injected the boy
with camphorated oil. After the injection, Vicente left
on a jeep in order to fetch Dr. Ayuyao from the
University of the Philippines. Meanwhile, Abao
continued the artificial manual respiration, and when
this failed to revive him, they applied the resuscitator
until the two oxygen tanks were exhausted. Not long
thereafter, Dr. Ayuyao arrived with another
resuscitator, but the same became of no use because
he found the boy already dead. The doctor ordered that
the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the
incident was investigated by the Police Department of
Quezon City and in the investigation boys Ruben Ong
and Andres Hagad, Jr. gave written statements. On the
following day, July 6, 1952, an autopsy was performed
by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in
the body of the deceased the following: an abrasion on
the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right
side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the
face and on the nails; the lung was soggy with fine
froth in the bronchioles; dark fluid blood in the heart;
congestion in the visceral organs, and brownish fluid in
the stomach. The death was due to asphyxia by
submersion in water.
The issue posed in this appeal is whether the death of
minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to
entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in
relation to Article 2080 of the new Civil Code. The first
article provides that "whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damages done."
Such fault or negligence is called quasi-delict. Under
the second article, this obligation is demandable not
only for one's own acts or omissions but also for those
of persons for whom one is responsible. In addition, we
may quote the following authorities cited in the
decision of the trial court:
"The rule is well settled that the owners of resorts
to which people generally are expressly or by
implication invited are legally bound to exercise
ordinary care and prudence in the management
and maintenance of such resorts, to the end of
making them reasonably safe for visitors" (Larkin
vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable
for injuries to a patron, resulting from lack of
ordinary care in providing for his safety, without
the fault of the patron, he is not, however, in any
sense deemed to be the insurer of the safety of
patrons. And the death of a patron within his
premises does not cast upon him the burden of
excusing himself from any presumption of
negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22
A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal.
495, 119 Pac. 661). Thus in Bertalot vs. Kinnare,
supra, it was held that there could be no recovery
for the death by drowning of a fifteen-year boy in
defendant's natatorium, where it appeared merely
that he was lastly seen alive in water at the shallow
end of the pool, and some ten or fifteen minutes
later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to
resuscitate him being without avail.

Since the present action is one for damages founded
on culpable negligence, the principle to be observed is
that the person claiming damages has the burden of
proving that the damage is caused by the fault or
negligence of the person from whom the damage is
claimed, or of one of his employees (Walter A. Smith &
Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517).
The question then that arises is: Have appellants
established by sufficient evidence the existence of fault
or negligence on the part of appellee so as to render it
liable for damages for the death of Dominador Ong?
There is no question that appellants had striven to
prove that appellee failed to take the necessary
precaution to protect the lives of its patrons by not
placing at the swimming pools efficient and competent
employees who may render help at a moment's notice,
and they ascribed such negligence to appellee because
the lifeguard it had on the occasion minor Ong was
drowning was not available or was attending to
something else with the result that his help came late.
Thus, appellants tried to prove through the testimony
of Andres Hagad, Jr. and Ruben Ong that when Eusebio
Ong and Hagad, Jr. detected that there was a drowning
person in the bottom of the big swimming pool and
shouted to the lifeguard for help, lifeguard Manuel
Abao did not immediately respond to the alarm and it
was only upon the third call that he threw away the
magazine he was reading and allowed three or four
minutes to elapse before retrieving the body from the
water. This negligence of Abao, they contend, is
attributable to appellee.
But the claim of these two witnesses not only was
vehemently denied by lifeguard Abao, but is belied by
the written statements given by them in the
investigation conducted by the Police Department of
Quezon City approximately three hours after the
happening of the accident. Thus, these two boys
admitted in the investigation that they narrated in their
statements everything they knew of the accident, but,
as found by the trial, nowhere in said statements do
they state that the lifeguard was chatting with the
security guard at the gate of the swimming pool or was
reading a comic magazine when the alarm was given
for which reason he failed to immediately respond to
the alarm. On the contrary, what Ruben Ong
particularly emphasized therein was that after the
lifeguard heard the shouts for help, the latter
immediately dived into the pool to retrieve the person
under water who turned out to be his brother. For this
reason, the trial court made this conclusion: "The
testimony of Ruben Ong and Andres Hagad, Jr. as to the
alleged failure of the lifeguard Abao to immediately
respond to their call may therefore be
disregarded because they are belied by their written
statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show
that appellee has taken all necessary precautions to
avoid danger to the lives of its patrons or prevent
accident which may cause their death. Thus, it has
been shown that the swimming pools of appellee are
provided with a ring buoy, toy roof, towing line, oxygen
resuscitator and a first aid medicine kit. The bottom of
the pools is painted with black colors so as to insure
clear visibility. There is on display in a conspicuous
place within the area certain rules and regulations
governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a
course for that purpose and were issued certificates of
proficiency. These lifeguards work on schedule
prepared by their chief and arranged in such a way as
to have two guards at a time on duty to look after the
safety of the bathers. There is a male nurse and a
sanitary inspector with a clinic provided with oxygen
resuscitator. And there are security guards who are
available always in case of emergency.
The record also shows that when the body of minor
Ong was retrieved from the bottom of the pool, the
employees of appellee did everything possible to bring
him back to life. Thus, after he was placed at the edge
of the pool, lifeguard Abao immediately gave him
manual artificial respiration. Soon thereafter, nurse
Armando Rule arrived, followed by sanitary inspector
Iluminado Vicente who brought with him an oxygen
resuscitator. When they found that the pulse of the boy
was abnormal, the inspector immediately injected him
with camphorated oil. When the manual artificial
respiration proved ineffective they applied the oxygen
resuscitator until its contents were exhausted. And
while all these efforts were being made, they sent for
Dr. Ayuyao from the University of the Philippines who
however came late because upon examining the body
he found him to be already dead. All of the foregoing
shows that appellee has done what is humanly possible
under the circumstances to restore life to minor Ong
and for that reason it is unfair to hold it liable for his
death.
Sensing that their former theory as regards the liability
of appellee may not be of much help, appellants now
switch to the theory that even if it be assumed that the
deceased is partly to be blamed for the unfortunate
incident, still appellee may be held liable under the
doctrine of "last clear chance" for the reason that,
having the last opportunity to save the victim, it failed
to do so.
We do not see how this doctrine may apply considering 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest,
that the record does not show how minor Ong came Vol. 8, pp. 955-956)
into the big swimming pool. The only thing the record
discloses is that minor Ong informed his elder brothers
that he was going to the locker room to drink a bottle
of coke but that from that time on nobody knew what
Before closing, we wish to quote the following
happened to him until his lifeless body was retrieved.
observation of the trial court, which we find supported
The doctrine of last clear chance simply means that the
by the evidence: "There is (also) a strong suggestion
negligence of a claimant does not preclude a recovery
coming from the expert evidence presented by both
for the negligence of defendant where it appears that
parties that Dominador Ong might have dived where
the latter, by exercising reasonable care and prudence,
the water was only 5.5 feet deep, and in so doing he
might have avoided injurious consequences to claimant
might have hit or bumped his forehead against the
notwithstanding his negligence. Or, "As the doctrine
bottom of the pool, as a consequence of which he was
usually is stated, a person who has the last clear
stunned, and which to his drowning. As a boy scout he
chance or opportunity of avoiding an accident,
must have received instructions in swimming. He knew,
notwithstanding the negligent acts of his opponent or
or have known that it was dangerous for him to dive in
the negligence of a third person which is imputed to his
that part of the pool."
opponent, is considered in law solely responsible for
the consequences of the accident." (38 Am. Jur. pp.
900-902) Wherefore, the decision appealed from being in
accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs.
It goes without saying that the plaintiff himself was
not free from fault, for he was guilty of antecedent
negligence in planting himself in the wrong side of Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A.,
the road. But as we have already stated, the Concepcion, Reyes, J. B. L., Endencia and Felix,
defendant was also negligent; and in such case the JJ., concur.
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 G.R. No. L-51806 November 8, 1988
circumstances, the law is that a person who has
the last clear chance to avoid the impending harm CIVIL AERONAUTICS
and fails to do so is chargeable with the ADMINISTRATION, petitioner, vs. COURT OF
consequences, without reference to the prior APPEALS and ERNEST E. SIMKE, respondents.
negligence of the other party. (Picart vs. Smith, 37
Phil., 809)

The Solicitor General for petitioner.

Since it is not known how minor Ong came into the big
Ledesma, Guytingco, Veleasco & Associates for
swimming pool and it being apparent that he went
respondent Ernest E. Simke.
there without any companion in violation of one of the
regulations of appellee as regards the use of the pools,
and it appearing that lifeguard Aba__o responded to
the call for help as soon as his attention was called to it
and immediately after retrieving the body all efforts at CORTES, J.:
the disposal of appellee had been put into play in order
to bring him back to life, it is clear that there is no Assailed in this petition for review on certiorari is the
room for the application of the doctrine now invoked by decision of the Court of Appeals affirming the trial court
appellants to impute liability to appellee.. decision which reads as follows:

The last clear chance doctrine can never apply
where the party charged is required to act
instantaneously, and if the injury cannot be
avoided by the application of all means at hand
after the peril is or should have been discovered; at
least in cases in which any previous negligence of
the party charged cannot be said to have
contributed to the injury. O'Mally vs. Eagan, 77 ALR
WHEREFORE, judgment is hereby rendered
ordering defendant to pay plaintiff the amount of
P15,589.55 as full reimbursement of his actual
medical and hospital expenses, with interest at the
legal rate from the commencement of the suit; the
amount of P20,200.00 as consequential damages;
the amount of P30,000.00 as moral damages; the
amount of P40,000.00 as exemplary damages; the
 further amount of P20,000.00 as attorney's fees
and the costs [Rollo, p. 24].
The facts of the case are as follows:
Private respondent is a naturalized Filipino citizen and
at the time of the incident was the Honorary Consul
Geileral of Israel in the Philippines.
In the afternoon of December 13, 1968, private
respondent with several other persons went to the
Manila International Airport to meet his future son-in-
law. In order to get a better view of the incoming
passengers, he and his group proceeded to the viewing
deck or terrace of the airport.
While walking on the terrace, then filled with other
people, private respondent slipped over an elevation
about four (4) inches high at the far end of the terrace.
As a result, private respondent fell on his back and
broke his thigh bone.
The next day, December 14, 1968, private respondent
was operated on for about three hours.
Private respondent then filed an action for damages
based on quasi-delict with the Court of First Instance of
Rizal, Branch VII against petitioner Civil Aeronautics
Administration or CAA as the entity empowered "to
administer, operate, manage, control, maintain and
develop the Manila International Airport ... ." [Sec. 32
(24), R.A. 776].
Said claim for damages included, aside from the
medical and hospital bills, consequential damages for
the expenses of two lawyers who had to go abroad in
private respondent's stead to finalize certain business
transactions and for the publication of notices
announcing the postponement of private respondent's
daughter's wedding which had to be cancelled because
of his accident [Record on Appeal, p. 5].
Judgment was rendered in private respondent's favor
prompting petitioner to appeal to the Court of Appeals.
The latter affirmed the trial court's decision. Petitioner
then filed with the same court a Motion for,
Reconsideration but this was denied.
Petitioner now comes before this Court raising the
following assignment of errors:
1. The Court of Appeals gravely erred in not holding
that the present the CAA is really a suit against the
Republic of the Philippines which cannot be sued
without its consent, which was not given in this
case.
2. The Court of Appeals gravely erred in finding
that the injuries of respondent Ernest E. Simke
were due to petitioner's negligence although
there was no substantial evidence to support such
finding; and that the inference that the hump or
elevation the surface of the floor area of the
terrace of the fold) MIA building is dangerous just
because said respondent tripped over it is
manifestly mistaken circumstances that justify a
review by this Honorable Court of the said finding
of fact of respondent appellate court (Garcia v.
Court of Appeals, 33 SCRA 622; Ramos v. CA, 63
SCRA 331.)
3. The Court of Appeals gravely erred in ordering
petitioner to pay actual, consequential, moral and
exemplary damages, as well as attorney's fees to
respondent Simke although there was no
substantial and competent proof to support said
awards I Rollo, pp. 93-94 1.
Invoking the rule that the State cannot be sued without
its consent, petitioner contends that being an agency
of the government, it cannot be made a party-
defendant in this case.
This Court has already held otherwise in the case
of National Airports Corporation v. Teodoro, Sr. [91 Phil.
203 (1952)]. Petitioner contends that the said ruling
does not apply in this case because: First, in the
Teodoro case, the CAA was sued only in a substituted
capacity, the National Airports Corporation being the
original party. Second, in the Teodoro case, the cause
of action was contractual in nature while here, the
cause of action is based on a quasi-delict. Third, there
is no specific provision in Republic Act No. 776, the law
governing the CAA, which would justify the conclusion
that petitioner was organized for business and not for
governmental purposes. [Rollo, pp. 94-97].
Such arguments are untenable.
First, the Teodoro case, far from stressing the point that
the CAA was only substituted for the National Airports
Corporation, in fact treated the CAA as the real party in
interest when it stated that:
xxx xxx xxx
... To all legal intents and practical purposes, the
National Airports Corporation is dead and the Civil
Aeronautics Administration is its heir or legal
representative, acting by the law of its creation
upon its own rights and in its own name. The better
practice there should have been to make the Civil
Aeronautics Administration the third party
defendant instead of the National Airports
Corporation. [National Airports Corp. v. Teodoro,
supra, p. 208.]
xxx xxx xxx
Second, the Teodoro case did not make any
qualification or limitation as to whether or not the
CAA's power to sue and be sued applies only to
contractual obligations. The Court in the Teodoro case
ruled that Sections 3 and 4 of Executive Order 365
confer upon the CAA, without any qualification, the
power to sue and be sued, albeit only by implication.
Accordingly, this Court's pronouncement that where
such power to sue and be sued has been granted
without any qualification, it can include a claim based
on tort or quasi-delict [Rayo v. Court of First Instance of
Bulacan, G.R. Nos. 55273-83, December 19,1981, 1 1 0
SCRA 4561 finds relevance and applicability to the
present case.
Third, it has already been settled in the Teodoro case
that the CAA as an agency is not immune from suit, it
being engaged in functions pertaining to a private
entity.
xxx xxx xxx
The Civil Aeronautics Administration comes under
the category of a private entity. Although not a
body corporate it was created, like the National
Airports Corporation, not to maintain a necessary
function of government, but to run what is
essentially a business, even if revenues be not its
prime objective but rather the promotion of travel
and the convenience of the travelling public. It is
engaged in an enterprise which, far from being the
exclusive prerogative of state, may, more than the
construction of public roads, be undertaken by
private concerns. [National Airports Corp. v.
Teodoro, supra, p. 207.]
xxx xxx xxx
True, the law prevailing in 1952 when the Teodoro case
was promulgated was Exec. Order 365 (Reorganizing
the Civil Aeronautics Administration and Abolishing the
National Airports Corporation). Republic Act No. 776
(Civil Aeronautics Act of the Philippines), subsequently
enacted on June 20, 1952, did not alter the character of
the CAA's objectives under Exec, Order 365. The
pertinent provisions cited in the Teodoro case,
particularly Secs. 3 and 4 of Exec. Order 365, which led
the Court to consider the CAA in the category of a
private entity were retained substantially in Republic
Act 776, Sec. 32 (24) and (25). Said Act provides:
Sec. 32. Powers and Duties of the Administrator.
Subject to the general control and supervision of
the Department Head, the Administrator shall have
among others, the following powers and duties:
xxx xxx xxx
(24) To administer, operate, manage, control,
maintain and develop the Manila International
Airport and all government-owned aerodromes
except those controlled or operated by the Armed
Forces of the Philippines including such powers and
duties as: (a) to plan, design, construct, equip,
expand, improve, repair or alter aerodromes or
such structures, improvement or air navigation
facilities; (b) to enter into, make and execute
contracts of any kind with any person, firm, or
public or private corporation or entity; ... .
(25) To determine, fix, impose, collect and receive
landing fees, parking space fees, royalties on sales
or deliveries, direct or indirect, to any aircraft for its
use of aviation gasoline, oil and lubricants, spare
parts, accessories and supplies, tools, other
royalties, fees or rentals for the use of any of the
property under its management and control.
xxx xxx xxx
From the foregoing, it can be seen that the CAA is
tasked with private or non-governmental functions
which operate to remove it from the purview of the rule
on State immunity from suit. For the correct rule as set
forth in the Tedoro case states:
xxx xxx xxx
Not all government entities, whether corporate or
non-corporate, are immune from suits. Immunity
functions suits is determined by the character of
the objects for which the entity was organized. The
rule is thus stated in Corpus Juris:
Suits against State agencies with relation to
matters in which they have assumed to act in
private or non-governmental capacity, and
 various suits against certain corporations
created by the state for public purposes, but to
engage in matters partaking more of the
nature of ordinary business rather than
functions of a governmental or political
character, are not regarded as suits against the
state. The latter is true, although the state may
own stock or property of such a corporation for
by engaging in business operations through a
corporation, the state divests itself so far of its
sovereign character, and by implication
consents to suits against the corporation. (59
C.J., 313) [National Airport Corporation v.
Teodoro, supra, pp. 206-207; Emphasis
supplied.]
This doctrine has been reaffirmed in the recent case
of Malong v. Philippine National Railways [G.R. No. L-
49930, August 7, 1985, 138 SCRA 631, where it was
held that the Philippine National Railways, although
owned and operated by the government, was not
immune from suit as it does not exercise sovereign but
purely proprietary and business functions. Accordingly,
as the CAA was created to undertake the management
of airport operations which primarily involve
proprietary functions, it cannot avail of the immunity
from suit accorded to government agencies performing
strictly governmental functions.
II
Petitioner tries to escape liability on the ground that
there was no basis for a finding of negligence. There
can be no negligence on its part, it alleged, because
the elevation in question "had a legitimate purpose for
being on the terrace and was never intended to trip
down people and injure them. It was there for no other
purpose but to drain water on the floor area of the
terrace" [Rollo, P. 99].
To determine whether or not the construction of the
elevation was done in a negligent manner, the trial
court conducted an ocular inspection of the premises.
xxx xxx xxx
... This Court after its ocular inspection found the
elevation shown in Exhs. A or 6-A where plaintiff
slipped to be a step, a dangerous sliding step, and
the proximate cause of plaintiffs injury...
xxx xxx xxx
This Court during its ocular inspection also
observed the dangerous and defective condition of
the open terrace which has remained unrepaired
through the years. It has observed the lack of
maintenance and upkeep of the MIA terrace, typical
of many government buildings and offices. Aside
from the litter allowed to accumulate in the
terrace, pot holes cause by missing tiles remained
unrepaired and unattented. The several elevations
shown in the exhibits presented were verified by
this Court during the ocular inspection it undertook.
Among these elevations is the one (Exh. A) where
plaintiff slipped. This Court also observed the other
hazard, the slanting or sliding step (Exh. B) as one
passes the entrance door leading to the terrace
[Record on Appeal, U.S., pp. 56 and 59; Emphasis
supplied.]
The Court of Appeals further noted that:
The inclination itself is an architectural anomaly for
as stated by the said witness, it is neither a ramp
because a ramp is an inclined surface in such a
way that it will prevent people or pedestrians from
sliding. But if, it is a step then it will not serve its
purpose, for pedestrian purposes. (tsn, p. 35, Id.)
[rollo, p. 29.]
These factual findings are binding and conclusive upon
this Court. Hence, the CAA cannot disclaim its liability
for the negligent construction of the elevation since
under Republic Act No. 776, it was charged with the
duty of planning, designing, constructing, equipping,
expanding, improving, repairing or altering aerodromes
or such structures, improvements or air navigation
facilities [Section 32, supra, R.A. 776]. In the discharge
of this obligation, the CAA is duty-bound to exercise
due diligence in overseeing the construction and
maintenance of the viewing deck or terrace of the
airport.
It must be borne in mind that pursuant to Article 1173
of the Civil Code, "(t)he fault or negligence of the
obligor consists in the omission of that diligence which
is required by the nature of the obligation and
corresponds with the circumstances of the person, of
the time and of the place." Here, the obligation of the
CAA in maintaining the viewing deck, a facility open to
the public, requires that CAA insure the safety of the
viewers using it. As these people come to the viewing
deck to watch the planes and passengers, their
tendency would be to look to where the planes and the
incoming passengers are and not to look down on the
floor or pavement of the viewing deck. The CAA should
have thus made sure that no dangerous obstructions or
elevations exist on the floor of the deck to prevent any
undue harm to the public.
The legal foundation of CAA's liability for quasi-delict
can be found in Article 2176 of the Civil Code which
provides that "(w)hoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done... As the CAA knew
of the existence of the dangerous elevation which it
claims though, was made precisely in accordance with
the plans and specifications of the building for proper
drainage of the open terrace [See Record on Appeal,
pp. 13 and 57; Rollo, p. 391, its failure to have it
repaired or altered in order to eliminate the existing
hazard constitutes such negligence as to warrant a
finding of liability based on quasi-delict upon CAA.
The Court finds the contention that private respondent
was, at the very least, guilty of contributory
negligence, thus reducing the damages that plaintiff
may recover, unmeritorious. Contributory negligence
under Article 2179 of the Civil Code contemplates a
negligent act or omission on the part of the plaintiff,
which although not the proximate cause of his
injury, contributed to his own damage, the proximate
cause of the plaintiffs own injury being the defendant's
lack of due care. In the instant case, no contributory
negligence can be imputed to the private respondent,
considering the following test formulated in the early
case of Picart v. Smith, 37 Phil. 809 (1918):
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 reasonable care and caution
which an ordinarily prudent man 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 the 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
be here of much value but this much can be
profitably said: Reasonable men-overn 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
the ignoring of the suggestion born of this
prevision, is always necessary before negligence
can be held to exist.... [Picart v. Smith, supra, p.
813; Emphasis supplied.]
The private respondent, who was the plaintiff in the
case before the lower court, could not have reasonably
foreseen the harm that would befall him, considering
the attendant factual circumstances. Even if the private
respondent had been looking where he was going, the
step in question could not easily be noticed because of
its construction. As the trial court found:
In connection with the incident testified to, a
sketch, Exhibit O, shows a section of the floorings
oil which plaintiff had tripped, This sketch reveals
two pavements adjoining each other, one being
elevated by four and one-fourth inches than the
other. From the architectural standpoint the higher,
pavement is a step. However, unlike a step
commonly seen around, the edge of the elevated
pavement slanted outward as one walks to one
interior of the terrace. The length of the inclination
between the edges of the two pavements is three
inches. Obviously, plaintiff had stepped on the
inclination because had his foot landed on the
lower pavement he would not have lost his
balance. The same sketch shows that both
pavements including the inclined portion are tiled
in red cement, and as shown by the photograph
Exhibit A, the lines of the tilings are continuous. It
would therefore be difficult for a pedestrian to see
the inclination especially where there are plenty of
persons in the terrace as was the situation when
plaintiff fell down. There was no warning sign to
direct one's attention to the change in the
elevation of the floorings. [Rollo, pp. 2829.]
III
Finally, petitioner appeals to this Court the award of
damages to private respondent. The liability of CAA to
answer for damages, whether actual, moral or
exemplary, cannot be seriously doubted in view of one
conferment of the power to sue and be sued upon it,
which, as held in the case of Rayo v. Court of First
Instance, supra, includes liability on a claim for quasi-
dilict. In the aforestated case, the liability of the
National Power Corporation to answer for damages
resulting from its act of sudden, precipitate and
simultaneous opening of the Angat Dam, which caused
the death of several residents of the area and the
destruction of properties, was upheld since the o,rant
of the power to sue and be sued upon it necessarily
implies that it can be held answerable for its tortious
acts or any wrongful act for that matter.
With respect to actual or compensatory damages, the
law mandates that the same be proven.
Art. 2199. Except as provided by law or by
stipulation, one are entitled to an adequate
compensation only for such pecuniary loss suffered
by him as he has duly proved. Such compensation
is referred to as actual on compensatory damages
[New Civil Code].
Private respondent claims P15,589.55 representing
medical and hospitalization bills. This Court finds the
same to have been duly proven through the testimony
of Dr. Ambrosio Tangco, the physician who attended to
private respondent (Rollo, p. 26) and who Identified
Exh. "H" which was his bill for professional services
[Rollo, p. 31].
Concerning the P20,200.00 alleged to have been spent
for other expenses such as the transportation of the
two lawyers who had to represent private respondent
abroad and the publication of the postponement
notices of the wedding, the Court holds that the same
had also been duly proven. Private respondent had
adequately shown the existence of such losses and the
amount thereof in the testimonies before the trial court
[CA decision, p. 81. At any rate, the findings of the
Court of Appeals with respect to this are findings of
facts [One Heart Sporting Club, Inc. v. Court of Appeals,
G.R. Nos. 5379053972, Oct. 23, 1981, 108 SCRA 4161
which, as had been held time and again, are, as a
general rule, conclusive before this Court [Sese v.
Intermediate Appellate Court, G.R. No. 66186, July 31,
1987,152 SCRA 585].
With respect to the P30,000.00 awarded as moral
damages, the Court holds private respondent entitled
thereto because of the physical suffering and physical
injuries caused by the negligence of the CAA [Arts.
2217 and 2219 (2), New Civil Code].
With respect to the award of exemplary damages, the
Civil Code explicitly, states:
Art. 2229. Exemplary or corrective damages, are
imposed, by way of example or correction for the
public good, in addition to the moral, liquidated or
compensatory
Art. 2231. In quasi-delicts, exemplary damages
may be granted if the defendant acted with gross
negligence.
Gross negligence which, according to the Court, is
equivalent to the term "notorious negligence" and
consists in the failure to exercise even slight care
[Caunan v. Compania General de Tabacos, 56 Phil. 542
(1932)] can be attributed to the CAA for its failure to
remedy the dangerous condition of the questioned
elevation or to even post a warning sign directing the
attention of the viewers to the change in the elevation
of the floorings notwithstanding its knowledge of the
hazard posed by such elevation [Rollo, pp. 28-29;
Record oil Appeal, p. 57]. The wanton disregard by the
CAA of the safety of the people using the viewing deck,
who are charged an admission fee, including the
petitioner who paid the entrance fees to get inside the
vantage place [CA decision, p. 2; Rollo, p. 25] and are,
therefore, entitled to expect a facility that is properly
and safely maintained justifies the award of
exemplary damages against the CAA, as a deterrent
and by way of example or correction for the public
good. The award of P40,000.00 by the trial court as
exemplary damages appropriately underscores the
point that as an entity changed with providing service
to the public, the CAA. like all other entities serving the
public. has the obligation to provide the public with
reasonably safe service.
Finally, the award of attorney's fees is also upheld
considering that under Art. 2208 (1) of the Civil Code,
the same may be awarded whenever exemplary
damages are awarded, as in this case, and,at any rate,
under Art. 2208 (11), the Court has the discretion to
grant the same when it is just and equitable.
However, since the Manila International Airport
Authority (MIAA) has taken over the management and
operations of the Manila International Airport [renamed
Ninoy Aquino International Airport under Republic Act
No. 6639] pursuant to Executive Order No. 778 as
amended by executive Orders Nos. 903 (1983), 909
(1983) and 298 (1987) and under Section 24 of the
said Exec. Order 778, the MIAA has assumed all the
debts, liabilities and obligations of the now defunct
Civil Aeronautics Administration (CAA), the liabilities of
the CAA have now been transferred to the MIAA.
WHEREFORE, finding no reversible error, the Petition
for review on certiorari is DENIED and the decision of
the Court of Appeals in CA-G.R. No. 51172-R is
AFFIRMED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ.,
concur.
[G.R. No. 130068. October 1, 1998]
FAR EASTERN SHIPPING COMPANY, petitioner,
vs. COURT OF APPELAS and PHILIPPINE
PORTS AUTHORITY, respondents.
[G.R. No. 130150. October 1, 1998]
MANILA PILOTS ASSOCIATION, petitioner,
vs. PHILIPPINE PORTS AUTHORITY and
FAR EASTERN SHIPPING
COMPANY, respondents.
DECISION
REGALADO, J.:
These consolidated petitions for review
on certiorari seek in unison to annul and set aside the
decision[1] of respondent Court of Appeals of November
15, 1996 and its resolution[2]dated July 31, 1997 in CA-
G.R. CV No. 24072, entitled Philippine Ports Authority,
Plaintiff-Appellee vs. Far Eastern Shipping Company,
Senen C. Gavino and Manila Pilots
Association.Defendants-Appellants, which affirmed with
modification the judgment of the trial court holding the
defendants-appellants therein solidarily liable for
damages in favor of herein private respondent.
There is no dispute about the facts as found by the
appellate court, thus --
x x x On June 20, 1980, the M/V PAVLODAR, flying
under the flagship of the USSR, owned and operated by
the Far Eastern Shipping Company (FESC for brevitys
sake), arrived at the Port of Manila from Vancouver,
British Columbia at about 7:00 oclock in the
morning. The vessel was assigned Berth 4 of the Manila
International Port, as its berthing space. Captain
Roberto Abellana was tasked by the Philippine Port
Authority to supervise the berthing of the
vessel. Appellant Senen Gavino was assigned by the
appellant Manila Pilots Association (MPA for brevitys
sake) to conduct docking maneuvers for the safe
berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine
anchorage and stationed himself in the bridge, with the
master of the vessel, Victor Kavankov, beside
him. After a briefing of Gavino by Kavankov of the
particulars of the vessel and its cargo, the vessel lifted
anchor from the quarantine anchorage and proceeded
to the Manila International Port. The sea was calm and
the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church
by the Tondo North Harbor) one-half mile from the pier,
Gavino ordered the engine stopped. When the vessel
was already about 2,000 feet from the pier, Gavino
ordered the anchor dropped. Kavankov relayed the
orders to the crew of the vessel on the bow. The left
anchor, with two (2) shackles were dropped.However,
the anchor did not take hold as expected. The speed of
the vessel did not slacken. A commotion ensued
between the crew members. A brief conference ensued
between Kavankov and the crew members. When
Gavino inquired what was all the commotion about,
Kavankov assured Gavino that there was nothing of it.
After Gavino noticed that the anchor did not take hold,
he ordered the engines half-astern. Abellana, who was
then on the pier apron, noticed that the vessel was
approaching the pier fast.Kavankov likewise noticed
that the anchor did not take hold. Gavino thereafter
gave the full-astern code. Before the right anchor and
additional shackles could be dropped, the bow of the
vessel rammed into the apron of the pier causing
considerable damage to the pier. The vessel sustained
damage too. (Exhibit 7-Far Eastern Shipping). Kavankov
filed his sea protest (Exhibit 1-Vessel). Gavino
submitted his report to the Chief Pilot (Exhibit 1-Pilot)
who referred the report to the Philippine Ports Authority
(Exhibit 2-Pilot) Abellana likewise submitted his report
of the incident (Exhibit B).
Per contract and supplemental contract of the
Philippine Ports Authority and the contractor for the
rehabilitation of the damaged pier, the same cost the
Philippine Ports Authority the amount of P1,126,132.25
(Exhibits D and E).[3]
On January 10, 1983, the Philippine Ports Authority
(PPA, for brevity), through the Solicitor General, filed
before the Regional Trial Court of Manila, Branch 39, a
complaint for a sum of money against Far Eastern
Shipping Co., Capt. Senen C. Gavino and the Manila
Pilots Association, docketed as Civil Case No. 83-14958,
[4]
praying that the defendants therein be held jointly
and severally liable to pay the plaintiff actual and
exemplary damages plus costs of suit. In a decision
dated August 1, 1985, the trial court ordered the
defendants therein jointly and severally to pay the PPA
the amount of P1,053,300.00 representing actual
damages and the cost of suit.[5]
The defendants appealed to the Court of Appeals
and raised the following issues: (1) Is the pilot of a
commercial vessel, under compulsory pilotage,
solely liable for the damage caused by the vessel to
the pier, at the port of destination, for his
negligence? And (2) Would the owner of the vessel be
liable likewise if the damage is caused by the
concurrent negligence of the master of vessel and the
pilot under a compulsory pilotage?
 As stated at the outset, respondent appellate
court affirmed the findings of the court a quo except
that it found no employer-employee relationship
existing between herein private respondents Manila
Pilots Association (MPA, for short) and Capt. Gavino.
[6]
This being so, it ruled instead that the liability of MPA
is anchored, not on Article 2180 of the Civil Code, but
on the provisions of Customs Administrative Order No.
15-65,[7] and accordingly modified said decision of the
trial court by holding MPA, along with its co-defendants
therein, still solidarily liable to PPA but entitled MPA to
reimbursement from Capt. Gavino for such amount of
the adjudged pecuniary liability in excess of the
amount equivalent to seventy-five percent (75%) of its
prescribed reserve fund.[8]
Neither Far Eastern Shipping Co. (briefly, FESC)
nor MPA was happy with the decision of the Court of
Appeals and both of them elevated their respective
plaints to us via separate petitions for review
on certiorari.
In G.R. No. 130068, which was assigned to the
Second Division of this Court, FESC imputed that the
Court of Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots
Association as the parties solely responsible for the
resulting damages sustained by the pier deliberately
ignoring the established jurisprudence on the matter.
2. in holding that the master had not exercised the
required diligence demanded from him by the
circumstances at the time the incident happened;
3. in affirming the amount of damages sustained by the
respondent Philippine Ports Authority despite a strong
and convincing evidence that the amount is clearly
exorbitant and unreasonable;
4. in not awarding any amount of counterclaim prayed
for by the petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot
Senen C. Gavino and Manila Pilots' Association in the
event that it be held liable.[9]
Petitioner asserts that since the MV PAVLODAR
was under compulsory pilotage at the time of the
incident, it was a compulsory pilot, Capt. Gavino, who
was in command and had complete control in the
navigation and docking of the vessel. It is the pilot who
supersedes the master for the time being in the
command and navigation of a ship and his orders must
be obeyed in all respects connected with her
navigation. Consequently, he was solely responsible for
the damage caused upon the pier apron, and not the
owners of the vessel. It claims that the master of the
boat did not commit any act of negligence when he
failed to countermand or overrule the orders of the
pilot because he did not see any justifiable reason to
do so. In other words, the master cannot be faulted for
relying absolutely on the competence of the
compulsory pilot. If the master does not observe that a
compulsory pilot is incompetent or physically
incapacitated, the master is justified in relying on the
pilot.[10]
Respondent PPA, in its comment, predictably in full
agreement with the ruling of respondent court on the
solidary liability of FESC, MPA and Capt. Gavino,
stresses the concurrent negligence of Capt. Gavino, the
harbor pilot, and Capt. Viktor Kabankov,* shipmaster of
MV Pavlodar, as the basis of their solidary liability for
damages sustained by PPA. It posits that the vessel
was being piloted by Capt. Gavino with Capt. Kabankov
beside him all the while on the bridge of the vessel, as
the former took over the helm of MV Pavlodar when it
rammed and damaged the apron of the pier of Berth
No. 4 of the Manila International Port. Their concurrent
negligence was the immediate and proximate cause of
the collision between the vessel and the pier - Capt.
Gavino, for his negligence in the conduct of docking
maneuvers for the safe berthing of the vessel; and
Capt. Kabankov, for failing to countermand the orders
of the harbor pilot and to take over and steer the
vessel himself in the face of imminent danger, as well
as for merely relying on Capt. Gavino during the
berthing procedure.[11]
On the other hand, in G.R. No. 130150, originally
assigned to the Court's First Division and later
transferred to the Third Division, MPA, now as
petitioner in this case, avers the respondent court's
errors consisted in disregarding and misinterpreting
Customs Administrative Order No. 15-65 which limits
the liability of MPA. Said pilots' association asseverates
that it should not be held solidarily liable with Capt.
Gavino who, as held by respondent court, is only a
member, not an employee, thereof. There being no
employer-employee relationship, neither can MPA be
held liable for any vicarious liability for the respective
exercise of profession by its members nor be
considered a joint tortfeasor as to be held jointly and
severally liable.[12] It further argues that there was
erroneous reliance on Customs Administrative Order
No. 15-65 and the constitution and by-laws of MPA,
instead of the provisions of the Civil Code on damages
which, being a substantive law, is higher in category
than the aforesaid constitution and by-laws of a
professional organization or an administrative order
which bears no provision classifying the nature of the
liability of MPA for the negligence its member pilots. [13]
As for Capt. Gavino, counsel for MPA states that
the former had retired from active pilotage services
since July 28, 1994 and has ceased to be a member of
petitioner pilots' association. He is not joined as a
petitioner in this case since his whereabouts are
unknown.[14]
FESC's comment thereto relied on the competence
of the Court of Appeals in construing provisions of law
or administrative orders as basis for ascertaining the
liability of MPA, and expressed full accord with the
appellate court's holding of solidary liability among
itself, MPA and Capt. Gavino. It further avers that the
disputed provisions of Customs Administrative Order
No. 15-65 clearly established MPA's solidary liability. [15]
On the other hand, public respondent PPA, likewise
through representations by the Solicitor General,
assumes the same supportive stance it took in G.R. No.
130068 in declaring its total accord with the ruling of
the Court of Appeals that MPA is solidarily liable with
Capt. Gavino and FESC for damages, and in its
application to the fullest extent of the provisions of
Customs Administrative Order No. 15-65 in relation to
MPA's constitution and by-laws which spell out the
conditions of and govern their respective
liabilities. These provisions are clear and ambiguous as
regards MPA's liability without need for interpretation
or construction. Although Customs Administrative
Order No. 15-65 is a mere regulation issued by an
administrative agency pursuant to delegated
legislative authority to fix details to implement the law,
it is legally binding and has the same statutory force as
any valid statute.[16]
Upon motion[17] by FESC dated April 24, 1998 in
G.R. No. 130150, said case was consolidated with G.R.
No. 130068.[18]
Prefatorily, on matters of compliance with
procedural requirements, it must be mentioned that
the conduct of the respective counsel for FESC and PPA
leaves much to be desired, to the displeasure and
disappointment of this Court.
Section 2, Rule 42 of the 1997 Rules of Civil
Procedure[19] incorporates the former Circular No. 28-91
which provided for what has come to be known as the
certification against forum shopping as an additional
requisite for petitions filed with the Supreme Court and
the Court of Appeals, aside from the other
requirements contained in pertinent provisions of the
Rules of Court therefor, with the end in view of
preventing the filing of multiple complaints involving
the same issues in the Supreme Court, Court of
Appeals or different divisions thereof or any other
tribunal or agency.
More particularly, the second paragraph of Section
2, Rule 42 provides:
xxxxxxxxx
The petitioner shall also submit together with the
petition a certification under oath that he has not
therefore commenced any other action involving the
same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other
tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and
if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5)
days therefrom. (Italics supplied.)
For petitions for review filed before the Supreme Court,
Section 4(e), Rule 45 specifically requires that such
petition shall contain a sworn certification against
forum shopping as provided in the last paragraph of
Section 2, Rule 42.
The records show that the law firm of Del Rosario
and Del Rosario through its associate, Atty. Herbert A.
Tria, is the counsel of record for FESC in both G.R. No.
130068 and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's
Second Division, commenced with the filing by FESC
through counsel on August 22, 1997 of a verified
motion for extension of time to file its petition for thirty
(30) days from August 28, 1997 or until September 27,
1997.[20] Said motion contained the following
certification against forum shopping[21] signed by Atty.
Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any
other action or proceeding involving the same issues in
the Supreme Court, the Court of Appeals, or any other
tribunal or agency; that to the best of my own
knowledge, no such action or proceeding is pending in
the Supreme Court, the Court of Appeals, or any other
tribunal or agency; that if I/we should thereafter learn
that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I/we
undertake to report that fact within five (5) days
therefrom to this Honorable Court.
This motion having been granted, FESC subsequently
filed its petition on September 26, 1997, this time
bearing a "verification and certification against forum-
shopping" executed by one Teodoro P. Lopez on
September 24, 1997,[22] to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation to
Section 2, Rule 42 of the Revised Rules of Civil
Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn,
depose and state:
1. That I am the Manager, Claims Department of Filsov
Shipping Company, the local agent of petitioner in this
case.
2. That I have caused the preparation of this Petition
for Review on Certiorari.
3. That I have read the same and the allegations
therein contained are true and correct based on the
records of this case.
4. That I certify that petitioner has not commenced any
other action or proceeding involving the same issues in
the Supreme Court or Court of Appeals, or any other
tribunal or agency, that to the best of my own
knowledge, no such action or proceeding is pending in
the Supreme Court, the Court of Appeals or any other
tribunal or agency, that I should thereafter learn that a
similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I undertake to
report the fact within five (5) days therefrom to this
Honorable Court. (Italics supplied for emphasis.)
Reviewing the records, we find that the petition
filed by MPA in G.R. No. 130150 then pending with the
Third Division was duly filed on August 29, 1997 with a
copy thereof furnished on the same date by registered
mail to counsel for FESC.[23] Counsel of record for MPA,
Atty. Jesus P. Amparo, in his verification accompanying
said petition dutifully revealed to the Court that--
xxxxxxxxx
3. Petitioner has not commenced any other action or
proceeding involving the same issues in his Honorable
Court, the Court of Appeals or different Divisions
thereof, or any other tribunal or agency, but to the
best of his knowledge, there is an action or proceeding
pending in this Honorable Court, entitled Far Eastern
Shipping Co., Petitioner, vs. Philippine Ports Authority
and Court of Appeals with a Motion for Extension of
time to file Petition for Review by Certiorari filed
sometime on August 18, 1997. If undersigned counsel
will come to know of any other pending action or claim
filed or pending he undertakes to report such fact
within five (5) days to this Honorable Court. [24] (Italics
supplied.)
Inasmuch as MPA's petition in G.R. No. 130150
was posted by registered mail on August 29, 1997 and
taking judicial notice of the average period of time it
takes local mail to reach its destination, by reasonable
estimation it would be fair to conclude that when FESC
filed its petition in G.R. No. 130068 on September 26,
1997, it would already have received a copy of the
former and would then have knowledge of the
pendency of the other petition initially filed with the
First Division. It was therefore incumbent upon FESC to
inform the Court of that fact through its certification
against forum shopping. For failure to make such
disclosure, it would appear that the aforequoted
certification accompanying the petition in G.R. No.
130068 is defective and could have been a ground for
dismissal thereof.
Even assuming that FESC has not yet received its
copy of MPA's petition at the time it filed its own
petition and executed said certification, its signatory
did state "that if I should thereafter learn that a similar
action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals or any
other tribunal or agency, I undertake to report the fact
within five (5) days therefrom in this Honorable
Court."[25] Scouring the records page by page in this
case, we find that no manifestation concordant with
such undertaking was then or at any other time
thereafter ever filed by FESC nor was there any
attempt to bring such matter to the attention of the
Court. Moreover, it cannot feign non-knowledge of the
existence of such other petition because FESC itself
filed the motion for consolidation in G.R. No. 130150 of
these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the
law firm of Del Rosario and Del Rosario, displays an
unprofessional tendency of taking the Rules for
granted, in this instance exemplified by its pro
forma compliance therewith but apparently without full
comprehension of and with less than faithful
commitment to its undertakings to this Court in the
interest of just, speedy and orderly administration of
court proceedings.
As between the lawyer and the courts, a lawyer
owes candor, fairness and good faith to the court. [26] He
is an officer of the court exercising a privilege which is
indispensable in the administration of justice.
[27]
Candidness, especially towards the courts, is
essential for the expeditious administration of
justice. Courts are entitled to expect only complete
honesty from lawyers appearing and pleading before
them.[28] Candor in all dealings is the very essence of
honorable membership in the legal profession. [29] More
specifically, a lawyer is obliged to observe the rules of
procedure and not to misuse them to defeat the ends
of justice.[30] It behooves a lawyer, therefore, to exert
every effort and consider it his duty to assist in the
speedy and efficient administration of justice. [31] Being
an officer of the court, a lawyer has a responsibility in
the proper administration of justice. Like the court
itself, he is an instrument to advance its ends -- the
speedy, efficient, impartial, correct and inexpensive
adjudication of cases and the prompt satisfaction of
final judgments. A lawyer should not only help attain
these objectives but should likewise avoid any
unethical or improper practices that impede, obstruct
or prevent their realization, charged as he is with the
primary task of assisting in the speedy and efficient
administration of justice.[32]
Sad to say, the members of said law firm sorely
failed to observe their duties as responsible members
of the Bar. Their actuations are indicative of their
predisposition to take lightly the avowed duties of
officers of the Court to promote respect for law and for
legal processes.[33] We cannot allow this state of things
to pass judicial muster.
In view of the fact that at around the time these
petitions were commenced, the 1997 Rules of Civil
Procedure had just taken effect, the Court treated
infractions of the new Rules then with relative liberality
in evaluating full compliance therewith. Nevertheless, it
would do well to remind all concerned that the penal
provisions of Circular No. 28-91 which remain operative
provides, inter alia:
3. Penalties.-
xxxxxxxxx
(c) The submission of a false certification under Par. 2
of the Circular shall likewise constitute contempt of
court, without prejudice to the filing of criminal action
against the guilty party. The lawyer may also be
subjected to disciplinary proceedings.
It must be stressed that the certification against
forum shopping ordained under the Rules is to be
executed by the petitioner, and not by
counsel. Obviously it is the petitioner, and not always
the counsel whose professional services have been
retained for a particular case, who is in the best
position to know whether he or it actually filed or
caused the filing of a petition in that case. Hence, a
certification against forum shopping by counsel is a
defective certification. It is clearly equivalent to non-
compliance with the requirement under Section 2, Rule
42 in relation to Section 4, Rule 45, and constitutes a
valid cause for dismissal of the petition.
Hence, the initial certification appended to the
motion for extension of time to file petition n G.R. No.
130068 executed in behalf of FESC by Atty. Tria is
procedurally deficient. But considering that it was a
superfluity at that stage of the proceeding, it being
unnecessary to file such a certification with a mere
motion for extension, we shall disregard such error.
Besides, the certification subsequently executed by
Teodoro P. Lopez in behalf of FESC cures that defect to
a certain extent, despite the inaccuracies earlier
pointed out. In the same vein, we shall consider the
verification signed in behalf of MPA by its counsel, Atty.
Amparo, in G.R. No. 130150 as substantial compliance
inasmuch as it served the purpose of the Rules of
informing the Court of the pendency of another action
or proceeding involving the same issues.
It bears stressing that procedural rules are
instruments in the speedy and efficient administration
of justice. They should be used to achieve such end
and not to derail it.[34]
Counsel for PPA did not make matters any
better. Despite the fact that, save for the Solicitor
General at the time, the same legal team of the Office
of the Solicitor General (OSG, for short) composed of
Assistant Solicitor General Roman G. Del Rosario and
Solicitor Luis F. Simon, with the addition of Assistant
Solicitor General Pio C. Guerrero very much later in the
proceedings, represented PPA throughout the appellate
proceedings in both G.R. No. 130068 and G.R. No.
130150 and was presumably fully acquainted with the
facts and issues of the case, it took the OSG an
inordinately and almost unreasonably long period of
time to file its comment, thus unduly delaying the
resolution of these cases. It took several changes of
leadership in the OSG -- from Silvestre H. Bello III to
Romeo C. dela Cruz and, finally, Ricardo P. Galvez --
before the comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for
extension of time totaling 210 days, a warning that no
further extensions shall be granted, and personal
service on the Solicitor General himself of the
resolution requiring the filing of such comment before
the OSG indulged the Court with the long required
comment on July 10, 1998. [35] This, despite the fact that
said office was required to file its comment way back
on November 12, 1997.[36] A closer scrutiny of the
records likewise indicates that petitioner FESC was not
even furnished a copy of said comment as required by
Section 5, Rule 42. Instead, a copy thereof was
inadvertently furnished to MPA which, from the point of
view of G.R. No. 130068, was a non-party. [37] The OSG
fared slightly better in G.R. No. 130150 in that it took
only six (6) extensions, or a total of 180 days, before
the comment was finally filed.[38] And while it properly
furnished petitioner MPA with a copy of its comment, it
would have been more desirable and expedient in this
case to have furnished its therein co-respondent FESC
with a copy thereof, if only as a matter of professional
courtesy.[39]
This undeniably dilatory disinclination of the OSG
to seasonably file required pleadings constitutes
deplorable disservice to the tax-paying public and can
only be categorized as censurable inefficiency on the
part of the government law office. This is most
certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the
OSG did not take the initiative of filing a motion for
consolidation in either G.R. No. 130068 or G.R. No.
130150, considering its familiarity with the background
of the case and if only to make its job easier by having
to prepare and file only one comment. It could not have
been unaware of the pendency of one or the other
petition because, being counsel for respondent in both
cases, petitioner is required to furnish it with a copy of
the petition under pain of dismissal of the petition for
failure otherwise.[40]
Besides, in G.R. 130068, it prefaces its discussions
thus --
Incidentally, the Manila Pilots' Association (MPA), one of
the defendants-appellants in the case before the
respondent Court of Appeals, has taken a separate
appeal from the said decision to this Honorable Court,
which was docketed as G.R. No. 130150 and entitled
"Manila Pilots' Association, Petitioner, versus Philippine
Ports Authority and Far Eastern Shipping Co.,
Respondents.[41]
Similarly, in G.R. No. 130150, it states -
Incidentally, respondent Far Eastern Shipping Co.
(FESC) had also taken an appeal from the said decision
to this Honorable Court, docketed as G.R. No. 130068,
entitled "Far Eastern Shipping Co. vs. Court of Appeals
and Philippine Ports Authority."[42]
We find here a lackadaisical attitude and
complacency on the part of the OSG in the handling of
its cases and an almost reflexive propensity to move
for countless extensions, as if to test the patience of
the Court, before favoring it with the timely submission
of required pleadings.
It must be emphasized that the Court can resolve
cases only as fast as the respective parties in a case
file the necessary pleadings. The OSG, be needlessly
extending the pendency of these cases through its
numerous motions for extension, came very close to
exhausting this Court's forbearance and has
regrettably fallen short of its duties as the People's
Tribune.
The OSG is reminded that just like other members
of the Bar, the canons under the Code of Professional
Responsibility apply with equal force on lawyers in
government service in the discharge of their official
tasks.[43] These ethical duties are rendered even more
exacting as to them because, as government counsel,
they have the added duty to abide by the policy of the
State to promote a high standard of ethics in public
service.[44] Furthermore, it is incumbent upon the OSG,
as part of the government bureaucracy, to perform and
discharge its duties with the highest degree of
professionalism, intelligence and skill [45] and to extend
prompt, courteous and adequate service to the public.
[46]
Now, on the merits of the case. After a judicious
examination of the records of this case, the pleadings
filed, and the evidence presented by the parties in the
two petitions, we find no cogent reason to reverse and
set aside the questioned decision. While not entirely a
case of first impression, we shall discuss the
issues seriatim and, correlatively by way of a judicial
once-over, inasmuch as the matters raised in both
petitions beg for validation and updating of well worn
maritime jurisprudence. Thereby, we shall write finis to
the endless finger-pointing in this shipping mishap
which has been stretched beyond the limits of judicial
tolerance.
The Port of Manila is within the Manila Pilotage
District which is under compulsory pilotage pursuant to
Section 8, Article III of Philippine Ports Authority
Administrative Order No. 03-85,[47] which provides that:
SEC. 8. Compulsory Pilotage Service.- For entering a
harbor and anchoring thereat, or passing through rivers
or straits within a pilotage district, as well as docking
and undocking at any pier/wharf, or shifting from one
berth or another, every vessel engaged in coastwise
and foreign trade shall be under compulsory pilotage. x
xx
In case of compulsory pilotage, the respective
duties and responsibilities of the compulsory pilot and
the master have been specified by the same regulation
in this wise:
SEC. 11. Control of vessels and liability for damage.
- On compulsory pilotage grounds, the Harbor Pilot,
providing the service to a vessel shall be responsible
for the damage caused to a vessel or to life and
property at ports due to his negligence or fault. He can
only be absolved from liability if the accident is caused
by force majeure or natural calamities provided he has
exercised prudence and extra diligence to prevent or
minimize damage.
The Master shall retain overall command of the vessel
even on pilotage grounds whereby he can
countermand or overrule the order or command of the
Harbor Pilot on board. In such event, any damage
caused to a vessel or to life and property at ports by
reason of the fault or negligence of the Master shall be
the responsibility and liability of the registered owner
of the vessel concerned without prejudice to recourse
against said Master.
Such liability of the owner or Master of the vessel or its
pilots shall be determined by competent authority in
appropriate proceedings in the light of the facts and
circumstances of each particular case.
SEC. 32. Duties and responsibilities of the Pilot or
Pilots' Association. - The duties and responsibilities of
the Harbor Pilot shall be as follows:
xxxxxxxxx
f) a pilot shall be held responsible for the direction of a
vessel from the time he assumes his work as a pilot
thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease at
the moment the Master neglects or refuses to carry out
his order.
Customs Administrative Order No. 15-65 issued
twenty years earlier likewise provided in Chapter I
thereof for the responsibilities of pilots:
Par. XXXIX. - A Pilot shall be held responsible for the
direction of a vessel from the time he assumes control
thereof until he leaves it anchored free from shoal;
Provided, That his responsibility shall cease at the
moment the master neglects or refuses to carry out his
instructions.
xxxxxxxxx
Par. XLIV. - Pilots shall properly and safely secure or
anchor vessels under their control when requested to
do so by the master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with
serious error in not holding MPA and Capt. Gavino
solely responsible for the damages caused to the
pier. It avers that since the vessel was under
compulsory pilotage at the time with Capt. Gavino in
command and having exclusive control of the vessel
during the docking maneuvers, then the latter should
be responsible for damages caused to the pier. [48] It
likewise holds the appellate court in error for holding
that the master of the ship, Capt. Kabankov, did not
exercise the required diligence demanded by the
circumstances.[49]
We start our discussion of the successive issues
bearing in mind the evidentiary rule in American
jurisprudence that there is a presumption of fault
against a moving vessel that strikes a stationary object
such as a dock or navigational aid. In admiralty, this
presumption does more than merely require the ship to
go forward and produce some evidence on the
presumptive matter. The moving vessel must show that
it was without fault or that the collision was occasioned
by the fault of the stationary object or was the result of
inevitable accident. It has been held that such vessel
must exhaust every reasonable possibility which the
circumstances admit and show that in each, they did
all that reasonable care required. [50] In the absence of
sufficient proof in rebuttal, the presumption of fault
attaches to a moving vessel which collides with a fixed
object and makes a prima facie case of fault against
the vessel.[51] Logic and experience support this
presumption:
The common sense behind the rule makes the burden
a heavy one. Such accidents simply do not occur in the
ordinary course of things unless the vessel has been
mismanaged in some way. It is not sufficient for the
respondent to produce witnesses who testify that as
soon as the danger became apparent
everything possible was done to avoid an accident. The
question remains, How then did the collision
occur? The answer must be either that, in spite of the
testimony of the witnesses, what was done was too
little or too late or, if not, then the vessel was at fault
for being in a position in which an unavoidable collision
would occur.[52]
The task, therefore, in these cases is to pinpoint who
was negligent - the master of the ship, the harbor pilot
or both.
A pilot, in maritime law, is a person duly qualified,
and licensed, to conduct a vessel into or out of ports,
or in certain waters. In a broad sense, the term "pilot"
includes both (1) those whose duty it is to guide
vessels into or out of ports, or in particular waters and
(2) those entrusted with the navigation of vessels on
the high seas.[53] However, the term "pilot" is more
generally understood as a person taken on board at a
particular place for the purpose of conducting a ship
through a river, road or channel, or from a port.[54]
Under English and American authorities, generally
speaking, the pilot supersedes the master for the time
being in the command and navigation of the ship, and
his orders must be obeyed in all matters connected
with her navigation. He becomes the master pro hac
vice and should give all directions as to speed, course,
stopping and reversing, anchoring, towing and the
like. And when a licensed pilot is employed in a place
where pilotage is compulsory, it is his duty to insist on
having effective control of the vessel, or to decline to
act as pilot. Under certain systems of foreign law, the
pilot does not take entire charge of the vessel, but is
deemed merely the adviser of the master, who retains
command and control of the navigation even on
localities where pilotage is compulsory.[55]
It is quite common for states and localities to
provide for compulsory pilotage, and safety laws have
been enacted requiring vessels approaching their
ports, with certain exceptions, to take on board pilots
duly licensed under local law. The purpose of these
laws is to create a body of seamen thoroughly
acquainted with the harbor, to pilot vessels seeking to
enter or depart, and thus protect life and property from
the dangers of navigation.[56]
In line with such established doctrines, Chapter II
of Customs Administrative Order No. 15-65 prescribes
the rules of compulsory pilotage in the covered
pilotage districts, among which is the Manila Pilotage
District, viz. --
PARAGRAPH I. - Pilotage for entering a harbor and
anchoring thereat, as well as docking and undocking in
any pier or shifting from one berth to another shall be
compulsory, except Government vessels and vessels of
foreign governments entitled to courtesy, and other
vessels engaged solely in river or harbor work, or in a
daily ferry service between ports which shall be
exempt from compulsory pilotage provisions of these
regulations: provided, however, that compulsory
pilotage shall not apply in pilotage districts whose
optional pilotage is allowed under these regulations.
Pursuant thereto, Capt. Gavino was assigned to
pilot MV Pavlodar into Berth 4 of the Manila
International Port. Upon assuming such office as
compulsory pilot, Capt. Gavino is held to the
universally accepted high standards of care and
diligence required of a pilot, whereby he assumes to
have skill and knowledge in respect to navigation in the
particular waters over which his license extends
superior to and more to be trusted than that of the
master.[57] A pilot should have a thorough knowledge of
general and local regulations and physical conditions
affecting the vessel in his charge and the waters for
which he is licensed, such as a particular harbor or
river. He is not held to the highest possible degree of
skill and care, but must have and exercise the ordinary
skill and care demanded by the circumstances, and
usually shown by an expert in his profession. Under
extraordinary circumstances, a pilot must exercise
extraordinary care.[58]
In Atlee vs. The Northwestern Union Packet
Company,[59] Mr. Justice Miller spelled out in great detail
the duties of a pilot:
x x x (T)he pilot of a river steamer, like the harbor
pilot, is selected for his personal knowledge of the
topography through which he steers his vessel. In the
long course of a thousand miles in one of these rivers,
he must be familiar with the appearance of the shore
on each side of the river as he goes along. Its banks,
towns, its landings, its houses and trees, are all
landmarks by which he steers his vessel. The compass
is of little use to him. He must know where the
navigable channel is, in its relation to all these external
objects, especially in the night. He must also be
familiar with all dangers that are permanently located
in the course of the river, as sand-bars, snags, sunken
rocks or trees or abandoned vessels or barges. All this
he must know and remember and avoid. To do this, he
must be constantly informed of the changes in the
current of the river, of the sand-bars newly made, of
logs or snags, or other objects newly presented,
against which his vessel might be injured.
xxxxxxxxx
It may be said that this is exacting a very high
order of ability in a pilot. But when we consider the
value of the lives and property committed to their
control, for in this they are absolute masters, the high
compensation they receive, the care which Congress
has taken to secure by rigid and frequent examinations
and renewal of licenses, this very class of skill, we do
not think we fix the standard too high.
Tested thereby, we affirm respondent court's
finding that Capt. Gavino failed to measure up to such
strict standard of care and diligence required of pilots
in the performance of their duties. Witness this
testimony of Capt. Gavino:
Court:
You have testified before that the reason why
the vessel bumped the pier was because the
anchor was not released immediately or as
soon as you have given the order. Do you
remember having stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the
vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to
understand that is that anchor was released
immediately at the time you gave the order,
the incident would not have happened. Is that
correct?
A Yes, sir, but actually it was only a presumption on
my part because there was a commotion
between the officers who are in charge of the
dropping of the anchor and the captain. I could
not understand their language, it was in
Russian, so I presumed the anchor was not
dropped on time.
Q So, you are not sure whether it was really
dropped on time or not?
A I am not sure, your Honor.
xxxxxxxxx
Q You are not even sure what could have caused the
incident. What factor could have caused the
incident?
 A Well, in this case now, because either the anchor
was not dropped on time or the anchor did not
hold, that was the cause of the incident, your
Honor.[60]
It is disconcertingly riddled with too much
incertitude and manifests a seeming indifference for
the possibly injurious consequences his commands as
pilot may have. Prudence required that he, as pilot,
should have made sure that his directions were
promptly and strictly followed. As correctly noted by
the trial court -
Moreover, assuming that he did indeed give the
command to drop the anchor on time, as pilot he
should have seen to it that the order was carried out,
and he could have done this in a number of ways, one
of which was to inspect the bow of the vessel where
the anchor mechanism was installed. Of course,
Captain Gavino makes reference to a commotion
among the crew members which supposedly caused
the delay in the execution of the command. This
account was reflected in the pilot's report prepared
four hours later, but Capt. Kavankov, while not
admitting whether or not such a commotion occurred,
maintained that the command to drop anchor was
followed "immediately and precisely." Hence, the Court
cannot give much weight or consideration to this
portion of Gavino's testimony."[61]
An act may be negligent if it is done without the
competence that a reasonable person in the position of
the actor would recognize as necessary to prevent it
from creating an unreasonable risk of harm to another.
[62]
Those who undertake any work calling for special
skills are required not only to exercise reasonable care
in what they do but also possess a standard minimum
of special knowledge and ability.[63]
Every man who offers his services to another, and
is employed, assumes to exercise in the employment
such skills he possesses, with a reasonable degree of
diligence. In all these employments where peculiar skill
is requisite, if one offers his services he is understood
as holding himself out to the public as possessing the
degree of skill commonly possessed by others in the
same employment, and if his pretensions are
unfounded he commits a species of fraud on every
man who employs him in reliance on his public
profession.[64]
Furthermore, there is an obligation on all persons
to take the care which, under ordinary circumstances of
the case, a reasonable and prudent man would take,
and the omission of that care constitutes negligence.
[65]
Generally, the degree of care required is graduated
according to the danger a person or property attendant
upon the activity which the actor pursues or the
instrumentality which he uses. The greater the danger
the greater the degree of care required. What is
ordinary under extraordinary of conditions is dictated
by those conditions; extraordinary risk demands
extraordinary care. Similarly, the more imminent the
danger, the higher the degree of care.[66]
We give our imprimatur to the bases for the
conclusion of the Court of Appeals that Capt. Gavino
was indeed negligent in the performance of his duties:
xxxxxxxxx
x x x As can be gleaned from the logbook, Gavino
ordered the left anchor and two (2) shackles dropped
at 8:30 o'clock in the morning. He ordered the engines
of the vessel stopped at 8:31 o'clock. By then, Gavino
must have realized that the anchor did not hit a hard
object and was not clawed so as to reduce the
momentum of the vessel. In point of fact, the vessel
continued travelling towards the pier at the same
speed. Gavino failed to react. At 8:32 o'clock, the two
(2) tugboats began to push the stern part of the vessel
from the port side but the momentum of the vessel
was not contained. Still, Gavino did not react. He did
not even order the other anchor and two (2) more
shackles dropped to arrest the momentum of the
vessel. Neither did he order full-astern. It was only at
8:34 o'clock, or four (4) minutes, after the anchor was
dropped that Gavino reacted. But his reaction was even
(haphazard) because instead of arresting fully the
momentum of the vessel with the help of the tugboats,
Gavino ordered merely "half-astern". It took Gavino
another minute to order a "full-astern". By then, it was
too late.The vessel's momentum could no longer be
arrested and, barely a minute thereafter, the bow of
the vessel hit the apron of the pier. Patently, Gavino
miscalculated. He failed to react and undertake
adequate measures to arrest fully the momentum of
the vessel after the anchor failed to claw to the
seabed. When he reacted, the same was even
(haphazard). Gavino failed to reckon the bulk of the
vessel, its size and its cargo. He erroneously believed
that only one (1) anchor would suffice and even when
the anchor failed to claw into the seabed or against a
hard object in the seabed, Gavino failed to order the
other anchor dropped immediately. His claim that the
anchor was dropped when the vessel was only 1,000
feet from the pier is but a belated attempt to extricate
himself from the quagmire of his own insouciance and
negligence. In sum, then, Appellants' claim that the
incident was caused by "force majeure" is barren of
factual basis.
xxxxxxxxx
The harbor pilots are especially trained for this
job. In the Philippines, one may not be a harbor pilot
unless he passed the required examination and training
conducted then by the Bureau of Custom, under
Customs Administrative Order No. 15-65, now under
the Philippine Ports Authority under PPA Administrative
Order 63-85. Paragraph XXXIX of the Customs
Administrative Order No. 15-65 provides that "the pilot
shall be held responsible for the direction of the vessel
from the time he assumes control thereof, until he
leaves it anchored free from shoal: Provided, that his
responsibility shall cease at the moment the master
neglects or refuse(s) to carry out his instructions." The
overall direction regarding the procedure for docking
and undocking the vessel emanates from the harbor
pilot. In the present recourse, Gavino failed to live up
to his responsibilities and exercise reasonable care or
that degree of care required by the exigencies of the
occasion. Failure on his part to exercise the degree of
care demanded by the circumstances is negligence
(Reese versus Philadelphia & RR Co. 239 US 463, 60 L
ed. 384, 57 Am Jur. 2d 12age 418).[67]
This affirms the findings of the trial court
regarding Capt. Gavino's negligence:
 This discussion should not however, divert the
court from the fact that negligence in manuevering the
vessel must be attributed to Capt. Senen Gavino. He
was an experienced pilot and by this time should have
long familiarized himself with the depth of the port and
the distance he could keep between the vessel and
port in order to berth safely.[68]
The negligence on the part of Capt. Gavino is
evident; but Capt. Kabankov is no less responsible for
the allision. His unconcerned lethargy as master of the
ship in the face of troublous exigence constitutes
negligence.
While it is indubitable that in exercising his
functions a pilot-is in sole command of the ship[69] and
supersedes the master for the time being in the
command and navigation of a ship and that he
becomes master pro hac vice of a vessel piloted by
him,[70] there is overwhelming authority to the effect
that the master does not surrender his vessel to the
pilot and the pilot is not the master. The master is still
in command of the vessel notwithstanding the
presence of a pilot. There are occasions when the
master may and should interfere and even displace the
pilot, as when the pilot is obviously incompetent or
intoxicated and the circumstances may require the
master to displace a compulsory pilot because of
incompetency or physical incapacity. If, however, the
master does not observe that a compulsory pilot is
incompetent or physically incapacitated, the master is
justified in relying on the pilot, but not blindly.[71]
The master is not wholly absolved from his duties
while a pilot is on board his vessel, and may advise
with or offer suggestions to him. He is still in command
of the vessel, except so far as her navigation is
concerned, and must cause the ordinary work of the
vessel to be properly carried on and the usual
precaution taken. Thus, in particular, he is bound to
see that there is sufficient watch on deck, and that the
men are attentive to their duties, also that engines are
stopped, towlines cast off, and the anchors clear and
ready to go at the pilot's order.[72]
A perusal of Capt. Kabankov's testimony makes it
apparent that he was remiss in the discharge of his
duties as master of the ship, leaving the entire docking
procedure up to the pilot, instead of maintaining
watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right
to intervene in docking of your ship in the
harbor?
A No sir, I have no right to intervene in time of
docking, only in case there is imminent danger
to the vessel and to the pier.
Q Did you ever intervene during the time that your
ship was being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the
pilot was docking my ship.
Q Up to the time it was actually docked at the pier,
is that correct'?
A No sir, I did not intervene up to the very moment
when the vessel was docked.
xxxxxxxxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there
anything unusual that happened during the
docking?
A Yes sir, our ship touched the pier and the pier was
damaged.
Court (to the witness)
Q When you said touched the pier, are you leading
the court to understand that your ship bumped
the pier?
A I believe that my vessel only touched the pier but
the impact was very weak.
Q Do you know whether the pier was damaged as a
result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxxxxxxxx
Q Being most concerned with the safety of your
vessel, in the maneuvering of your vessel, to
the port, did you observe anything irregular in
the maneuvering by Capt. Gavino at the time
he was trying to cause the vessel to be docked
at the pier?
A You mean the action of Capt. Gavino or his
condition?
Court:
Q Not the actuation that conform to the safety
maneuver of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the
court to understand that there was nothing
irregular in the docking of the ship?
A Yes sir, during the initial period, of the docking,
there was nothing unusual that happened.
Q What about in the last portion of the docking of
the ship, was there anything unusual or
abnormal that happened?
A None Your Honor, I believe that Capt. Gavino
thought that the anchor could keep or hold the
vessel.
Q You want us to understand, Mr. Witness, that the
dropping of the anchor of the vessel was not
timely?
A I don't know the depth of this port but I think, if
the anchor was dropped earlier and with more
shackles, there could not have been an
incident.
Q So you could not precisely tell the court that the
dropping of the anchor was timely because you
are not well aware of the seabed, is that
correct?
A Yes sir, that, is right.
xxxxxxxxx
Q Alright, Capt. Kavankov, did you come to know
later whether the anchor held its ground so
much so that the vessel could not travel?
A It is difficult for me to say definitely. I believe that
the anchor did not hold the ship.
Q You mean you don't know whether the anchor
blades stuck to the ground to stop the ship
from further moving?
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold
the vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to
hold the ship, did you not make any protest to
the pilot?
A No sir, after the incident, that was my
assumption.
Q Did you come to know later whether that
presumption is correct?
A I still don't know the ground in the harbor or the
depths.
Q So from the beginning, you were not competent
whether the 2 shackles were also dropped to
hold the ship?
A No sir, at the beginning, I did not doubt it because
I believe Capt. Gavino to be an experienced
pilot and he should be more aware as to the
depths of the harbor and the ground and I was
confident in his actions.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the
bridge of the vessel before the incident
happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see
from that point of view?
A That is right.
Q Whatever the pilot can read from the panel of the
bridge, you also could read, is that correct?
A What is the meaning of panel'?
Q All indications necessary for men on the bridge to
be informed of the movements of the ship?
A That is right.
Q And whatever sound the captain... Capt. Gavino
would hear from the bridge, you could also
hear?
A That is right.
Q Now, you said that when the command to lower
the anchor was given, it was obeyed, is that
right?
A This command was executed by the third mate
and boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said
that you did not intervene with the duties of
the pilot and that, in your opinion, you can only
intervene if the ship is placed in imminent
danger, is that correct?
A That is right, I did say that.
Q In your observation before the incident actually
happened, did you observe whether or not the
ship, before the actual incident, the ship was
placed in imminent danger?.
A No sir, I did not observe.
Q By that answer, are you leading the court to
understand that because you did not intervene
and because you believed that it was your duty
to intervene when the vessel is placed in
imminent danger to which you did not observe
any imminent danger thereof, you have not
intervened in any manner to the command of
the pilot?
A That is right, sir.
xxxxxxxxx
Q Assuming that you disagreed with the pilot
regarding the step being taken by the pilot in
maneuvering the vessel. whose command will
prevail, in case of imminent danger to the
vessel?
A I did not consider the situation as having an
imminent danger. I believed that the vessel will
dock alongside the pier.
Q You want us to understand that you did not see an
imminent danger to your ship, is that what you
mean?
A Yes sir, up to the very last moment, I believed that
there was no imminent danger.
Q Because of that, did you ever intervene in the
command of the pilot?
A Yes sir, I did not intervene because I believed that
the command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider
docking maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port or
pier, but also the safety of the vessel and the
cargo, is it not?
A That is right.
 Q So that, I assume that you were watching Capt.
Gavino very closely at the time he was making
his commands?
A I was close to him, I was hearing his command
and being executed.
Q And that you were also alert for any possible
mistakes he might commit in the maneuvering
of the vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue
order contrary to the orders Capt. Gavino
made?
A No sir.
Q So that you were in full accord with all of
Capt. Gavino's orders?
A Yes sir.
Q Because, otherwise, you would have issued order
that would supersede his own order?
A In that case, I should take him away from his
command or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken
by Capt. Gavino because you relied on his
knowledge, on his familiarity of the seabed and
shoals and other surroundings or conditions
under the sea, is that correct?
A Yes sir, that is right.
xxxxxxxxx
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped
and they did not take hold of the seabed, you
were alerted that there was danger already on
hand?
A No sir, there was no imminent danger to the
vessel.
Q Do you mean to tell us that even if the anchor
was supposed to take hold of the bottom and it
did not, there was no danger to the ship?
A Yes sir, because the anchor dragged on the
ground later.
Q And after a few moments when the anchor should
have taken hold the seabed but not done (sic),
as you expected, you already were alerted that
there was danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert you assumed was the ordinary
alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of any
man in time of docking to be alert.
Q And that is the same alertness when the anchor
did not hold onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the
anchor will hold the ground.
Q Since, as you said that you agreed all the while
with the orders of Capt. Gavino, you also
therefore agreed with him in his failure to take
necessary precaution against the eventuality
that the anchor will not hold as expected?
Atty. Del Rosario:
May I ask that the question ...
Solicitor Abad:
Never mind, I will reform the question.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel
did not hold the ground as expected?
A Yes sir, that is my opinion.[73]
Further, on redirect examination, Capt. Kabankov
fortified his apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there
any point in time that you felt that the vessel
was in imminent danger.
A No, at that time, the vessel was not in imminent
danger, sir."[74]
This cavalier appraisal of the event by
Capt. Kabankov is disturbingly antipodal to
Capt. Gavino's anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the pilot's
command which should be followed-at that
moment until the vessel is, or goes to port or
reaches port?
A Yes, your Honor, but it does not take away from
the Captain his prerogative to countermand the
pilot.
Q In what way?
A In any case, which he thinks the pilot is not
maneuvering correctly, the Captain always has
the prerogative to countermand the pilot's
order.
Q But insofar as competence, efficiency and
functional knowledge of the seabed which are
vital or decisive in the safety (sic) bringing of a
vessel to the port, he is not competent?
A Yes, your Honor. That is why they hire a pilot in an
advisory capacity, but still, the safety of the
vessel rest(s) upon the Captain, the Master of
the vessel.
 Q In this case, there was not a disagreement
between you and the Captain of the vessel in
the bringing of the vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here
that he was all along in conformity with the
orders you gave to him, and, as matter of fact,
as he said, he obeyed all your orders. Can you
tell, if in the course of giving such normal
orders for the saf(e) docking of the MV
Pavlodar, do you remember of any instance
that the Master of the vessel did not obey your
command for the safety docking of the MV
Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court
that there was no disagreement insofar as the
bringing of the vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV
Pavlodar, do you remember of a time during
the course of the docking that the MV Pavlodar
was in imminent danger of bumping the pier?
A When we were about more than one thousand
meters from the pier. I think, the anchor was
not holding, so I immediately ordered to push
the bow at a fourth quarter, at the back of the
vessel in order to swing the bow away from the
pier and at the same time, I ordered for a full
astern of the engine."[75]
These conflicting reactions can only imply, at the very
least, unmindful disregard or, worse, neglectful
relinquishment of duty by the shipmaster, tantamount
to negligence.
The findings of the trial court on this aspect is
noteworthy:
For, while the pilot Gavino may indeed have been
charged with the task of docking the vessel in the
berthing space, it is undisputed that the master of the
vessel had the corresponding duty to countermand any
of the orders made by the pilot, aid even maneuver the
vessel himself, in case of imminent danger to the
vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted
that all throughout the man(eu)vering procedures he
did not notice anything was going wrong, and even
observed that the order given to drop the anchor, was
done at the proper time. He even ventured the opinion
that the accident occurred because the anchor failed to
take hold but that this did not alarm him because there
was still time to drop a second anchor.
Under normal circumstances, the above-
mentioned facts would have caused the master of a
vessel to take charge of the situation and see to the
man(eu)vering of the vessel himself.Instead,
Capt. Kavankov chose to rely blindly upon his pilot, who
by this time was proven ill-equipped to cope with the
situation.
xxxxxxxxx
It is apparent that Gavino was negligent but Far
Eastern's employee Capt. Kavankov was no less
responsible for as master of the vessel he stood by the
pilot during the man(eu)vering procedures and was
privy to every move the latter made, as well as the
vessel's response to each of the commands. His choice
to rely blindly upon the pilot's skills, to the point that
despite being appraised of a notice of alert he
continued to relinquish control of the vessel to Gavino,
shows indubitably that he was not performing his
duties with the diligence required of him and therefore
may be charged with negligence along with defendant
Gavino.[76]
As correctly affirmed by the Court of Appeals -
We are in full accord with the findings and
disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov
had been a mariner for thirty-two years before the
incident. When Gavino was (in) the command of the
vessel, Kavankov was beside Gavino, relaying the
commands or orders of Gavino to the crewmembers-
officers of the vessel concerned. He was thus fully
aware of the docking maneuvers and procedure Gavino
undertook to dock the vessel. Irrefragably, Kavankov
was fully aware of the bulk and size of the vessel and
its cargo as well as the weight of the vessel. Kavankov
categorically admitted that, when the anchor and two
(2) shackles were dropped to the sea floor, the claws of
the anchor did not hitch on to any hard object in the
seabed. The momentum of the vessel was not
arrested. The use of the two (2) tugboats was
insufficient. The momentum of the vessel, although a
little bit arrested, continued (sic) the vessel going
straightforward with its bow towards the port (Exhibit
"A-1"). There was thus a need for the vessel to move
"full-astern" and to drop the other anchor with another
shackle or two '(2), for the vessel to avoid hitting the
pier.Kavankov refused to act even as Gavino failed to
act. Even as Gavino gave mere "half-astern" order,
Kavankov supinely stood by. The vessel was already
about twenty (20) meters away from the pier when
Gavino gave the 'full-astern" order. Even then,
Kavankov did nothing to prevent the vessel from hitting
the pier simply because he relied on the competence
and plan of Gavino. While the "full-astern" maneuver
momentarily arrested the momentum of the vessel, it
was, by then, too late. All along, Kavankov stood
supinely beside Gavino, doing nothing but relay the
commands of Gavino. Inscrutably, then, Kavankov was
negligent.
xxxxxxxxx
The stark incompetence of Kavankov is competent
evidence to prove the unseaworthiness of the vessel. It
has been held that the incompetence of the navigator,
the master of the vessel or its crew makes the vessel
unseaworthy (Tug Ocean Prince versus United States of
America, 584 F. 2nd, page 1151). Hence, the Appellant
FESC is likewise liable for the damage sustained by the
Appellee."[77]
We find strong and well-reasoned support in time-
tested American maritime jurisprudence, on which
much of our laws and jurisprudence on the matter are
based, for the conclusions of the Court of Appeals
adjudging both Capt. Gavino and Capt. Kabankov
negligent.
As early as 1869, the U.S. Supreme Court
declared, through Mr. Justice Swayne, in The Steamship
China vs. Walsh,[78] that it is the duty of the master to
interfere in cases of the pilot's intoxication or manifest
incapacity, in cases of danger which he does not
foresee, and in all cases of great necessity. The master
has the same power to displace the pilot that he has to
remove any subordinate officer of the vessel, at his
discretion.
In 1895, the U.S. Supreme Court, this time
through Mr. Justice Brown, emphatically ruled that:
Nor are we satisfied with the conduct of the
master in leaving the pilot in sole charge of the
vessel. While the pilot doubtless supersedes the
master for the time being in the command and
navigation of the ship, and his orders must be obeyed
in all matters connected with her navigation, the
master is not wholly absolved from his duties while the
pilot is on board, and may advise with him, and even
displace him in case he is intoxicated or manifestly
incompetent. He is still in command of the vessel,
except so far as her navigation is concerned, and
bound to see that there is a sufficient watch on deck,
and that the men are attentive to their duties.
xxx (N)otwithstanding the pilot has charge, it is
the duty of the master to prevent accident, and not to
abandon the vessel entirely to the pilot; but that there
are certain duties he has to discharge (notwithstanding
there is a pilot on board) for the benefit of the owners.
x x x that in well conducted ships the master does
not regard the presence of a duly licensed pilot in
compulsory pilot waters as freeing him from every
obligation to attend to the safety of the vessel; but
that, while the master sees that his officers and crew
duly attend to the pilot's orders, he himself is bound to
keep a vigilant eye on the navigation of the vessel,
and, when exceptional circumstances exist, not only to
urge upon the pilot to use every precaution, but to
insist upon, such being taken."[79] (Italics for emphasis.)
In Jure vs. United Fruit Co.,[80] which, like the
present petitions, involved compulsory pilotage, with a
similar scenario where at and prior to the time of
injury, the vessel was in the charge of a pilot with the
master on the bridge of the vessel beside said pilot,
the court therein ruled:
The authority of the master of a vessel is not in
complete abeyance while a pilot, who is required by
law to be accepted, is in discharge of his functions. x x
x It is the duty of the master to interfere in cases of the
pilot's intoxication or manifest incapacity, in cases of
danger which he does not foresee, and in all cases of
great necessity . The master has the same power to
displace the pilot that he has to remove any
subordinate officer of the vessel. He may exercise it, or
not, according to his discretion. There was evidence to
support findings that plaintiff's injury was due to the
negligent operation of the Atenas, and that the master
of that vessel was negligent in failing to take action to
avoid endangering a vessel situated as the City of
Canton was and persons or property thereon.
A phase of the evidence furnished support for the
inferences x x x that he negligently failed to suggest to
the pilot the danger which was disclosed, and means of
avoiding such danger; and that the master's
negligence in failing to give timely admonition to the
pilot proximately contributed to the injury complained
of. We are of opinion that the evidence mentioned
tended to prove conduct of the pilot, known to the
master, giving rise to a case of danger or great
necessity, calling for the intervention of the master. A
master of a vessel is not Without fault in acquiescing in
conduct of a pilot which involves apparent and
avoidable danger, whether such danger is to the vessel
upon which the pilot is, or to another vessel, or persons
or property thereon or on shore. (Italics ours.)
Still in another case involving a nearly identical setting,
the captain of a vessel alongside the compulsory pilot
was deemed to be negligent, since, in the words of the
court, "he was in a position to exercise his superior
authority if he had deemed the speed excessive on the
occasion in question. I think it was clearly negligent of
him not to have recognized the danger to any craft
moored at Gravell Dock and that he should have
directed the pilot to reduce his speed as required by
the local governmental regulations. His failure
amounted to negligence and renders the respondent
liable."[81] (Italics supplied.) Though a compulsory pilot
might be regarded as an independent contractor, he is
at all times subject to the ultimate control of the ship's
master.[82]
In sum, where a compulsory pilot is in charge of a
ship, the master being required to permit him to
navigate it, if the master observes that the pilot is
incompetent or physically incapable, then it is the duty
of the master to refuse to permit the pilot to act. But if
no such reasons are present, then the master is
justified in relying upon the pilot, but not blindly. Under
the circumstances of this case, if a situation arose
where the master, exercising that reasonable vigilance
which the master of a ship should exercise, observed,
or should have observed, that the pilot was so
navigating the vessel that she was going, or was likely
to go, into danger, and there was in the exercise of
reasonable care and vigilance an opportunity for the
master to intervene so as to save the ship from danger,
the master should have acted accordingly. [83] The
master of a vessel must exercise a degree of vigilance
commensurate with the circumstances.[84]
Inasmuch as the matter of negligence is a
question of fact,[85] we defer to the findings of the trial
court, especially as this is affirmed by the Court of
Appeals.[86] But even beyond that, our own evaluation
is that Capt. Kabankov's shared liability is due mainly
to the fact that he failed to act when the perilous
situation should have spurred him into quick and
decisive action as master of the ship. In the face of
imminent or actual danger, he did not have to wait for
the happenstance to occur before countermanding or
overruling the pilot. By his own admission, Capt.
Kabankov concurred with Capt. Gavino's decisions, and
this is precisely the reason why he decided not to
countermand any of the latter's orders. Inasmuch as
both lower courts found Capt. Gavino negligent, by
expressing full agreement therewith Capt. Kabankov
was just as negligent as Capt. Gavino.
In general, a pilot is personally liable for damages
caused by his own negligence or default to the owners
of the vessel, and to third parties for damages
sustained in a collision. Such negligence of the pilot in
the performance of duty constitutes a maritime tort.
[87]
At common law, a shipowner is not liable for injuries
inflicted exclusively by the negligence of a pilot
accepted by a vessel compulsorily. [88] The exemption
from liability for such negligence shall apply if the pilot
is actually in charge and solely in fault. Since, a pilot is
responsible only for his own personal negligence, he
cannot be held accountable for damages proximately
caused by the default of others, [89] or, if there be
anything which concurred with the fault of the pilot in
producing the accident, the vessel master and owners
are liable.
Since the colliding vessel is prima
facie responsible, the burden of proof is upon the party
claiming benefit of the exemption from liability. It must
be shown affirmatively that the pilot was at fault, and
that there was no fault on the part of the officers or
crew, which might have been conducive to the
damage. The fact that the law compelled the master to
take the pilot does not exonerate the vessel from
liability. The parties who suffer are entitled to have
their remedy against the vessel that occasioned the
damage, and are not under necessity to look to the
pilot from whom redress is not always had for
compensation. The owners of the vessel are
responsible to the injured party for the acts of the pilot,
and they must be left to recover the amount as well as
they can against him. It cannot be maintained that the
circumstance of having a pilot on board, and acting in
conformity to his directions operate as a discharge of
responsibility of the owners. [90] Except insofar as their
liability is limited or exempted by statute, the vessel or
her owner are liable for all damages caused by the
negligence or other wrongs of the owners or those in
charge of the vessel. Where the pilot of a vessel is not
a compulsory one in the sense that the owner or
master of the vessel are bound to accept him, but is
employed voluntarily, the owners of the vessel are, all
the more, liable for his negligent act.[91]
In the United States, the owners of a vessel are
not personally liable for the negligent acts of a
compulsory pilot, but by admiralty law, the fault or
negligence of a compulsory pilot is imputable to the
vessel and it may be held liable therefor in rem. Where,
however, by the provisions of the statute the pilot is
compulsory only in the sense that his fee must be paid,
and is not in compulsory charge of the vessel, there is
no exemption from liability. Even though the pilot is
compulsory, if his negligence was not the sole cause of
the injury, but the negligence of the master or crew
contributed thereto, the owners are liable.[92] But the
liability of the ship in rem does not release the pilot
from the consequences of his own negligence. [93] The
rationale for this rule is that the master is not entirely
absolved of responsibility with respect to navigation
when a compulsory pilot is in charge. [94]
By way of validation and in light of the aforecited
guidepost rulings in American maritime cases, we
declare that our rulings during the early years of this
century in City of Manila vs.Gambe, [95] China
Navigation Co., Ltd. vs. Vidal,[96] and Yap Tico & Co. vs.
Anderson, et al.[97] have withstood the proverbial test of
time and remain good and relevant case law to this
day.
City of Manila stands for the doctrine that the pilot
who was in command and complete control of a vessel,
and not the owners, must be held responsible for an
accident which was solely the result of the mistake of
the pilot in not giving proper orders, and which did not
result from the failure of the owners to equip the vessel
with the most modern and improved machinery. In
China Navigation Co., the pilot deviated from the
ordinary and safe course, without heeding the warnings
of the ship captain. It was this careless deviation that
caused the vessel to collide with a pinnacle rock which,
though uncharted, was known to pilots and local
navigators. Obviously, the captain was blameless. It
was the negligence of the pilot alone which was the
proximate cause of the collision. The Court could not
but then rule that -
The pilot in the case at bar having deviated from
the usual and ordinary course followed by navigators in
passing through the strait in question, without a
substantial reason, was guilty of negligence, and that
negligence having been the proximate cause of the
damages, he is liable for such damages as usually and
naturally flow therefrom. x x x.
x x x (T)he defendant should have known of the
existence and location of the rock upon which the
vessel struck while under his control and management.
x x x.
Consistent with the pronouncements in these two
earlier cases, but on a slightly different tack, the Court
in Yap Tico & Co. exonerated the pilot from liability for
the accident where the order's of the pilot in the
handling of the ship were disregarded by the officers
and crew of the ship. According to the Court, a pilot is
"x x x responsible for a full knowledge of the channel
and the navigation only so far as he can accomplish it
through the officers and crew of the ship, and I don't
see that he can be held responsible for damage when
the evidence shows, as it does in this case, that the
officers and crew of the ship failed to obey his orders."
Nonetheless, it is possible for a compulsory pilot and
the master of the vessel to be concurrently negligent
and thus share the blame for the resulting damage as
Joint tortfeasors,[98] but only under the circumstances
obtaining in and demonstrated by the instant petitions.
It may be said, as a general rule, that negligence
in order to render a person liable need not be the sole
cause of an injury. It is sufficient that his negligence,
concurring with one or more efficient causes other than
plaintiff's, is the proximate cause of the
injury. Accordingly, where several causes combine to
produce injuries, a person is not relieved from liability
because he is responsible for only one of them, it being
sufficient that the negligence of the person charged
with injury is an efficient cause without which the injury
would not have resulted to as great an extent, and that
such cause is not attributable to the person injured. It
is no defense to one of the concurrent tortfeasors that
the injury would not have resulted from his negligence
alone, without the negligence or wrongful acts of the
other concurrent tortfeasor.[99] Where several causes
producing an injury are concurrent and each is an
efficient cause without which the injury would not have
happened, the injury may be attributed to all or any of
the causes and recovery may be had against any or all
of the responsible persons although under the
circumstances of the case, it may appear that one of
them was more culpable, and that the duty owed by
them to the injured person was not the same. No
actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of
other actors. Each wrongdoer is responsible for the
entire result and is liable as though his acts were the
sole cause of the injury.[100]
There is no contribution between joint tortfeasors
whose liability is solidary since both of them are liable
for the total damage. Where the concurrent or
successive negligent acts or omissions of two or more
persons, although acting independently, are in
combination the direct and proximate cause of a single
injury to a third person, it is impossible to determine in
what proportion each contributed to the injury and
either of them is responsible for the whole
injury. Where their concurring negligence resulted in
injury or damage to a third party, they become joint
tortfeasors and are solidarity liable for the resulting
damage under Article 2194[101] of the Civil Code.[102]
As for the amount of damages awarded by the
trial court, we find the same to be reasonable. The
testimony of Mr. Pascual Barral, witness for PPA, on
cross and redirect examination, appears to be
grounded on practical considerations:
Q So that the cost of the two additional piles as well
as the (two) square meters is already included
in this -P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not
represent only for the six piles that was
damaged as well as the corresponding two
piles.
A The area was corresponding, was increased by
almost two in the actual payment. That was
why the contract was decreased, the real
amount was P1,124,627.40 and the final one
is P1300,999.77.
Q Yes, but that P1,300,999.77 included
additional two new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took
place in 1980 and you started the repair and
reconstruction in 1982, that took almost two
years?
A Yes sir.
Q May it not happen that by natural factors, the
existing damage in 1980 was aggravated for
the 2 year period that the damage portion was
not repaired?
A I don't think so because that area was at once
marked and no vehicles can park, it was
closed.
Q Even if or even natural elements cannot affect the
damage?
A Cannot, sir.
xxxxxxxxx
Q You said in the cross-examination that there were
six piles damaged by the accident, but that in
the reconstruction of the pier, PPA drove and
constructed 8 piles. Will you explain to us why
there was change in the number of piles from
the original number?
A In piers where the piles are withdrawn or pulled
out, you cannot re-drive or drive piles at the
same point. You have to redesign the driving of
the piles. We cannot drive the piles at the same
point where the piles are broken or damaged or
pulled out. We have to redesign, and you will
note that in the reconstruction, we redesigned
such that it necessitated 8 piles.
Q Why not, why could you not drive the same
number of piles and on the same spot?
A The original location was already disturbed. We
cannot get required bearing capacity. The area
is already disturbed.
Q Nonetheless, if you drove the original number of
piles, six, on different places, would not that
have sustained the same load?
A It will not suffice, sir."[103]
We quote the findings of the lower court with
approval:
With regards to the amount of damages that is to be
awarded to plaintiff, the Court finds that the amount
of P1,053,300.00 is justified. Firstly, the doctrine of res
ipsa loquitur best expounded upon in the landmark
case of Republic vs. Luzon Stevedoring Corp. (21 SCRA
279) establishes the presumption that in the ordinary
course of events the ramming of the dock would not
have occurred if proper care was used.
Secondly, the various estimates and plans justify the
cost of the port construction price. The new structure
the
constructed not only replaced the damaged one but
was built of stronger materials to forestall the
possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to
an award of P1,053,300.00 which represents actual
damages caused by the damage to Berth 4 of the
Manila International Port. Co-defendants Far Eastern
Shipping, Capt. Senen Gavino and Manila Pilots
Association are solidarity liable to pay this amount to
plaintiff.[104]
The Solicitor General rightly commented that the
adjudicated amount of damages represents the
proportional cost of repair and rehabilitation of the
damaged section of the pier.[105]
Except insofar as their liability is limited or
exempted by statute, the vessel or her owners are
liable for all damages caused by the negligence or
other wrongs of the owners or those in charge of the
vessel. As a general rule, the owners or those in
possession and control of a vessel and the vessel are
liable for all natural and proximate damages caused to
persons or property by reason of her negligent
management or navigation.[106]
FESC's imputation of PPA's failure to provide a safe
and reliable berthing place is obtuse, not only because
it appears to be a mere afterthought, being tardily
raised only in this petition, but also because there is no
allegation or evidence on record about Berth No. 4
being unsafe and unreliable, although perhaps it is a
modest pier by international standards. There was,
therefore, no error on the part of the Court of Appeals
in dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court
of Appeals erred in holding MPA jointly and solidarity
liable with its member pilot, Capt. Gavino, in the
absence of employer-employee relationship and in
applying Customs Administrative Order No. 15-65, as
basis for the adjudged solidary liability of MPA and
Capt. Gavino.
The pertinent provisions in Chapter I of Customs
Administrative Order No. 15-65 are:
"PAR. XXVII.-- In all pilotage districts where pilotage is
compulsory, there shall be created and maintained by
the pilots or pilots' association, in the manner
hereinafter prescribed, a reserve fund equal
to P1,000.00 for each pilot thereof for the purpose of
paying claims for damages to vessels or property
caused through acts or omissions of its members while
rendered in compulsory pilotage service. In Manila, the
reserve fund shall be P2,000.00 for each pilot.
PAR. XXVIII.-- A pilots' association shall not be liable
under these regulations for damage to any vessel, or
other property, resulting from acts of a member of an
association in the actual performance of his duty for a
greater amount than seventy-five per centum (75%) of
its prescribed reserve fund; it being understood that if
the association is held liable for an amount greater
than the amount above-stated, the excess shall be paid
by the personal funds of the member concerned.
PAR. XXXI.-- If a payment is made from the reserve
fund of an association on account of damages caused
by a member thereof, and he shall have been found at
fault, such member shall reimburse the association in
the amount so paid as soon as practicable; and for this
purpose, not less than twenty-five per centum of his
dividends shall be retained each month until the full
amount has been returned to the reserve fund.
PAR. XXXIV. - Nothing in these regulations shall relieve
any pilots' association or members thereof, individually
or collectively, from civil responsibility for damages to
life or property resulting from the acts of members in
the performance of their duties.
Correlatively, the relevant provisions of PPA
Administrative Order No. 03-85, which timely amended
this applicable maritime regulation, state:
Article IV
SEC. 17. Pilots' Association -- The Pilots in a Pilotage
District shall organize themselves into a Pilots'
Association or firm, the members of which shall
promulgate their own By-Laws not in conflict with the
rules and regulations promulgated by the
Authority. These By-Laws shall be submitted not later
than one (1) month after the organization of the Pilots'
Association for approval by the General Manager of the
Authority. Subsequent amendments thereto shall
likewise be submitted for approval.
SEC. 25. Indemnity Insurance and Reserve Fund--
a) Each Pilots' Association shall collectively insure
its membership at the rate of P50,000.00 each
member to cover in whole or in part any
liability arising from any accident resulting in
damage to vessel(s), port facilities and other
properties and/or injury to persons or death
which any member may have caused in the
course of his performance of pilotage duties. x
x x.
b) The Pilotage Association shall likewise set up
and maintain a reserve fund which shall answer
for any part of the liability referred to in the
immediately preceding paragraph which is left
unsatisfied by the insurance proceeds, in the
following manner:
1) Each pilot in the Association shall contribute
from his own account an amount of P4,000.00
(P6,000.00 in the Manila Pilotage District) to
the reserve fund. This fund shall not be
considered part of the capital of the Association
nor charged as an expense thereof.
2) Seventy-five percent (75%) of the reserve fund
shall be set aside for use, in the payment of
damages referred to above incurred in the
actual performance of pilots' duties and the
excess shall be paid from the personal funds of
the member concerned.
 xxxxxxxxx
5) If payment is made from the reserve fund of an
Association on account of damage caused by a
member thereof who is found at fault, he shall
reimburse the Association in the amount so
paid as soon as practicable; and for this
purpose, not less than twenty-five percentum
(25%) of his dividend shall be retained each
month until the full amount has been returned
to the reserve fund. Thereafter, the pilot
involved shall be entitled to his full dividend.
6) When the reimbursement has been completed
as prescribed in the preceding paragraph, the
ten percentum (10%) and the interest withheld
from the shares of the other pilots in
accordance with paragraph (4) hereof shall be
returned to them.
c) Liability of Pilots' Association -- Nothing in these
regulations shall relieve any Pilots' Association
or members thereof, individually or collectively,
from any civil, administrative and/or criminal
responsibility for damages to life or property
resulting from the individual acts of its
members as well as those of the Association's
employees and crew in the performance of
their duties.
The Court of Appeals, while affirming the trial
court's finding of solidary liability on the part of FESC,
MPA and Capt. Gavino, correctly based MPA's liability
not on the concept of employer-employee relationship
between Capt. Gavino and itself, but on the provisions
of Customs Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings
and disquisitions of the Court a quo, the Appellant
Gavino was not and has never been an employee of
the MPA but was only a member thereof. The Court a
quo, it is noteworthy,, did not state the factual basis on
which it anchored its finding that Gavino was the
employee of MPA. We are in accord with MPA's
pose.Case law teaches Us that, for an employer-
employee relationship to exist the confluence of the
following elements must be established: (1) selection
and engagement of employees; (2) the payment of
wages; (3) the power of dismissal; (4) the employer's
power to control the employees with respect to the
means and method by which the work is to be
performed (Ruga versus NLRC, 181SCRA 266).
xxxxxxxxx
The liability of MPA for damages is not anchored on
Article 2180 of the New Civil Code as erroneously found
and declared by the Court a quo but under the
provisions of Customs Administrative Order No. 15-65,
supra, in tandem with the by-laws of the MPA." [107]
There being no employer-employee relationship,
clearly Article 2180[108] of the Civil Code is inapplicable
since there is no vicarious liability of an employer to
speak of. It is so stated in American law, as follows:
The well-established rule is that pilot associations are
immune to vicarious liability for the tort of their
members. They are not the employer of their members
and exercise no control over them once they take the
helm of the vessel. They are also not partnerships
because the members do not function as agents for the
association or for each other. Pilots' associations are
also not liable for negligently assuring, the competence
of their members because as professional associations
they made no guarantee of the professional conduct of
their members to the general public. [109]
Where under local statutes and regulations, pilot
associations lack the necessary legal incidents of
responsibility, they have been held not liable for
damages caused by the default of a member pilot.
[110]
Whether or not the members of a pilots' association
are in legal effect a copartnership depends wholly on
the powers and duties of the members in relation to
one another under the provisions of the governing
statutes and regulations. The relation of a pilot to his
association is not that of a servant to the master, but
of an associate assisting and participating in a common
purpose. Ultimately, the rights and liabilities between a
pilots' association and an individual member depend
largely upon the constitution, articles or by-laws of the
association, subject to appropriate government
regulations.[111]
No reliance can be placed by MPA on the cited
American rulings as to immunity from liability of a
pilots' association in light of existing positive regulation
under Philippine law. The Court of Appeals properly
applied the clear and unequivocal provisions of
Customs Administrative Order No. 15-65. In doing so, it
was just being consistent with its finding of the non-
existence of employer-employee relationship between
MPA and Capt. Gavino precludes the application of
Article 2180 of the Civil Code.
True, Customs Administrative Order No. 15-65
does not categorically characterize or label MPA's
liability as solidary in nature. Nevertheless, a careful
reading and proper analysis of the correlated provisions
lead to the conclusion that MPA is solidarity liable for
the negligence of its member pilots, without prejudice
to subsequent reimbursement from the pilot at fault.
Article 1207 of the Civil Code provides that there
is solidary liability only when the obligation expressly
so states, or when the law or the nature of the
obligation requires solidarity.Plainly, Customs
Administrative Order No. 15-65, which as an
implementing rule has the force and effect of law, can
validly provide for solidary liability. We note the
Solicitor General's comment hereon, to wit:
x x x Customs Administrative Order No. 15-65 may be a
mere rule and regulation issued by an administrative
agency pursuant to a delegated authority to fix "the
details" in the execution or enforcement of a policy set
out in the law itself. Nonetheless, said administrative
order, which adds to the procedural or enforcing
provisions of substantive law, is legally binding and
receives the same statutory force upon going into
effect. In that sense, it has equal, not lower, statutory
force and effect as a regular statute passed by the
legislature."[112]
MPA's prayer for modification of the appellate court's
decision under review by exculpating petitioner MPA
"from liability beyond seventy-five percent (75%) of
Reserve Fund" is unnecessary because the liability of
MPA under Par. XXVIII of Customs Administrative Order
No. 15-65 is in fact limited to seventy-five percent
(75%) of its prescribed reserve fund, any amount of
liability beyond that being for the personal account of
the erring pilot and subject to reimbursement in case of
a finding of fault by the member concerned. This is
clarified by the Solicitor General:

Moreover, contrary to petitioners pretensions, the

provisions of Customs Administrative Order No. 15-65
do not limit the liability of petitioner as a pilots' G.R. No. L-4977 March 22, 1910
association to an absurdly small amount of seventy-five
per centum (75%) of the member pilots' contribution DAVID TAYLOR, plaintiff-appellee, vs.THE MANILA
of P2,000.00 to the reserve fund. The law speaks of the ELECTRIC RAILROAD AND LIGHT
entire reserve fund required to be maintained by the COMPANY, defendant-appellant.
pilots' association to answer (for) whatever liability
arising from the tortious act of its members. And even
if the association is held liable for an amount greater W. H. Lawrence, for appellant.
than the reserve fund, the association may not resist
the liability by claiming to be liable only up to seventy- W. L. Wright, for appellee.
five per centum (75%) of the reserve fund because in
such instance it has the right to be reimbursed by the CARSON, J.:
offending member pilot for the excess."[113]

An action to recover damages for the loss of an eye

WHEREFORE, in view of all of the foregoing, the
consolidated petitions for review are DENIED and the
assailed decision of the Court of Appeals is
AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and
Del Rosario, specifically its associate, Atty. Herbert A.
Tria, is REPRIMANDED and WARNED that a repetition of
the same or similar acts of heedless disregard of its
undertakings under the Rules shall be dealt with more
severely.
The original members of the legal team of the
Office of the Solicitor General assigned to this case,
namely, Assistant Solicitor General Roman G. Del
Rosario and Solicitor Luis F. Simon, are ADMONISHED
and WARNED that a repetition of the same or similar
acts of unduly delaying proceedings due to delayed
filing of required pleadings shall also be dealt with
more stringently.
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.

The Solicitor General is DIRECTED to look into the

circumstances of this case and to adopt provident
measures to avoid a repetition of this incident and
which would ensure prompt compliance with orders of
this Court regarding the timely filing of requisite
pleadings, in the interest of just, speedy and orderly
administration of justice.
Let copies of this decision be spread upon the
personal records of the lawyers named herein in the
Office of the Bar Confidant.
SO ORDERED.
Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Panganiban, Martinez,
Quisumbing and Purisima, JJ., concur.
Narvasa, C.J., and Mendoza, J., on leave.
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.
xxx xxx xxx
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.
xxx xxx xxx
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 damagesthat 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.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.
G.R. No. L-10563 March 2, 1916
THE UNITED STATES, plaintiff-appellee, vs. ANTONIO
BONIFACIO, defendant-appellant.
William A. Kincaid and Thomas L. Hartigan for
appellant.
Acting Attorney-General Zaragoza for appellee.
CARSON, J.:
The appellant in this case was charged in the court
below with homicidio por imprudencia
temeraria (homicide committed with reckless
negligence), and was convicted of homicidio committed
with simple negligence and sentenced to four months
and one day of arresto mayor and to pay the costs of
the proceedings.
The information charges the commission of the offense
as follows:
On or about the 31st day of October of the present
year, 1913, in the barrio of Santa Rita of the
municipality of Batangas, Batangas, the accused,
being an engineer and while conducting the freight
train which was going to the municipality of Bauan,
at about 10 o'clock in the morning of the said day
saw that Eligio Castillo, a deaf-mute, was traveling
along the railroad track, and as the said Castillo did
not get off of the said track in spite of the whistle
or warnings given by the accused, the accused did
maliciously and criminally cause the said train to
run over the said Castillo, thereby killing him
instantly; an act committed with violation of law.
On the 31st of October, 1913, Eligio Castillo, a deaf-
mute, was run down and killed, while attempting to
cross the railroad track in the barrio of Santa Rita,
Batangas, by an engine on which the accused was
employed as engineer. The deaf-mute stepped out on
the track from an adjoining field shortly before the
accident, walked along one side of the track for some
little distance and was killed as he attempted, for some
unknown reason, to cross over to the other side.
When the accused engineer first saw the deceased, he
was walking near the track, in the same direction as
that in which the train was running. The train, a heavy
freight train, had just rounded a curve, and the man in
front was about 175 meters ahead of the engine. The
engineer immediately blew his whistle twice, and
noticing, a few moments afterwards, that the man in
front did not respond to the warning by stepping aside
from the track, he tried to slow down the engine, but
did not succeed in stopping in time to avoid running
down the pedestrian. He did not attempt to stop his
engine when he first saw the man walking along the
side of the track; but he claims that he did all in his
power to slow down a few moments afterwards, that is
to say after he had blown his whistle without
apparently attracting the attention of the pedestrian,
who, about that time, turned and attempted to cross
the track.
The only evidence as to the rate of speed at which the
train was running at the time of the accident was the
testimony of the accused himself, who said that his
indicator showed that he was travelling at the rate of
35 kilometers an hour, the maximum speed permitted
under the railroad regulations for freight trains on that
road.
There was a heavy decline in the track from the turn at
the curve to a point some distance beyond the place
where the accident took place, and the undisputed
evidence discloses that a heavy freight train running at
the rate of 35 miles an hour could not be brought to a
stop on that decline in much less than one hundred
and fifty meters.
We think that the meter statement of facts, as
disclosed by the undisputed evidence of record,
sufficiently and conclusive demonstrates that the death
of the deaf-mute was the result of a regrettable
accident, which was unavoidable so far as this accused
was concerned.
It has been suggested that, had the accused applied
his brakes when he first saw the man walking near the
track, after his engine rounded the curve, he might
have stopped the train in time to have avoided the
accident, as it is admitted that the distance from the
curve to the point where the accident occurred was
about 175 meters.
But there is no obligation on an engine driver to stop,
or even to slow down his engine, when he sees an
adult pedestrian standing or walking on or near the
track, unless there is something in the appearance or
conduct of the person on foot which would cause a
prudent man to anticipate the possibility that such
person could not, or would not avoid the possibility of
danger by stepping aside. Ordinarily, all that may
properly be required of an engine driver under such
circumstances is that he give warning of his approach,
by blowing his whistle or ringing his bell until he is
assured that the attention of the pedestrian has been
attracted to the oncoming train.
Of course it is the duty of an engine driver to adopt
every measure in his power to avoid the infliction of
injury upon any person who may happen to be on the
track in front of his engine, and to slow down, or stop
altogether if that be necessary, should he have reason
to believe that only by doing so can an accident be
averted.
But an engine driver may fairly assume that all persons
walking or standing on or near the railroad track,
except children of tender years, are aware of the
danger to which they are exposed; and that they will
take reasonable precautions to avoid accident, by
looking and listening for the approach of trains, and
stepping out of the way of danger when their attention
is directed to an oncoming train.
Any other rule would render it impracticable to operate
railroads so as to secure the expeditious transportation
of passengers and freight which the public interest
demands. If engine drivers were required to slow down
or stop their trains every time they see a pedestrian on
or near the track of the railroad it might well become
impossible for them to maintain a reasonable rate of
speed. As a result the general traveling public would be
exposed to great inconvenience and delay which may
be, and is readily avoided by requiring all persons
approaching a railroad track, to take reasonable
precautions against danger from trains running at high
speed.
There was nothing in the appearance or conduct of the
victim of the accident in the cast at bar which would
have warned the accused engine driver that the man
walking along the side of the tract was a deaf-mute,
and that despite the blowing of the whistle and the
noise of the engine he was unconscious of his danger.
It was not until the pedestrian attempted to cross the
track, just in front of the train, that the accused had
any reason to believe that his warning signals had not
been heard, and by that time it was too late to avoid
the accident. Under all the circumstances, we are
satisfied that the accused was without fault; and that
the accident must be attributed wholly to the reckless
negligence of the deaf-mute, in walking on the track
without taking the necessary precautions to avoid
danger from a train approaching him from behind.
The trial judge, although he was satisfied that the
accused was not guilty of reckless negligence, held
that he was guilty of homicide through simple
negligence, accompanied by a breach of speed
regulations, and imposed the penalty prescribed for
that offense in article 568 of the Penal Code.
The only evidence as to the speed at which the train
was running at the time of the accident was the
testimony of the accused himself, who said that before
the accident occurred his indicator showed that he was
running at the rate of 35 kilometers an hour, the
maximum speed authorized under the railroad
regulations. From this statement of the accused, taken
together with the evidence disclosing that the train
was running on a down grade at the time when the
accident occurred, the trial judge inferred that the train
must have been running at more than 35 miles an hour
at that moment, that is to say at a speed in excess of
that allowed under the railroad regulations.
We are of opinion, however, that the evidence does not
sustain a finding, beyond a reasonable doubt, that the
train was running at more than 35 miles an hour at the
time when the accident occurred. We think that the
statement of the accused engineer that the indicator or
his engine showed that he was running at 35 miles an
hour before the accident referred to the time
immediately preceding the accident. Even if it were
true, as the trial judge inferred from his evidence, that
the accused looked at the indicator several seconds
before the accident, and before the train entered on
the down-grade some 175 yards from the place at
which it occurred, it does not necessarily follow that
the speed of travel was increased thereafter beyond
the limit prescribed by regulations. That would depend
to some extent on the steam pressure maintained on
the engine, and perhaps upon other factors not
developed in the record.
Mere conjecture, and inferences unsupported by
satisfactory evidence, are not sufficient to establish a
material finding of fact upon which a finding of guilt,
beyond a reasonable doubt, can be sustained.
Moreover, even if it were true that the train was
running at a speed slightly in excess of the limit
prescribed by regulations, just before the accident took
place, that fact would not justify or require the
imposition of the penalty prescribed in article 568 of
the Criminal Code, it affirmatively appearing that the
slight excess of speed had no possible causal relation
to the accident.
Granting it to be true, as found by the trial judge, that
the train had gained some small addition in speed
beyond the authorized rate of travel, as a result of the
fact that it was running on down grade for about one
hundred meters before the accident occurred, it
affirmatively appears from the statement of facts set
forth above, that, under all the circumstances, the
accident must have taken place whether the speed had
been slightly under rather than slightly over the limit
prescribed by regulation, and that it was due wholly to
the negligent conduct of the deceased. The provisions
of article 568 of the Criminal Code under which the
accused was convicted are as follows:
xxx xxx xxx
Any person who, while violating any regulation,
shall, by any act of imprudence or negligence not
amounting to reckless imprudence, commit an
offense, shall suffer the penalty of arresto mayor in
its medium and maximum degrees.
This does not mean that in every case in which one
accidentally injures or kills another he is criminally
liable therefor, if at the moment he happens to be
guilty of a violation of some petty regulation
(reglamento). The injury or death must have resulted
from some "imprudence or negligence" (imprudencia o
negligencia) on his part. True it need only be slight
negligence, if accompanied by a violation of the
regulations, but the relation of cause and effect must
exist between the negligence or imprudence of the
accused and the injury inflicted. If it appears that the
injury in no wise resulted from the violation of the
regulations, or the negligent conduct of the accused,
he incurs no criminal liability under the provisions of
this article.
Viada, in his commentaries on this article of the Penal
Code (vol. 3, p. 685), sets out the following question
and answer which clearly discloses that a conviction
thereunder cannot be maintained, unless there was
culpable negligence in the violation of a duly
prescribed regulation; and unless, further, the latter
was the proximate and immediate cause of the injury
inflicted:
Question No. 17. A pharmacist left his store
forgetting and leaving behind the keys to the case
where the most powerful drugs were kept. During
his absence his clerk filled a prescription which he
believed was duly made out by a physician but
which, in fact, was signed by an unauthorized
person. The prescription called for certain
substances which were afterwards employed to
procure an abortion. These substances, according
to a medical report, were of a poisonous and
extremely powerful nature such as should be most
carefully safeguarded and only expended after
ratification of the prescription in accordance with
article 20 of the ordinance relating to the practice
of pharmacy. Under these circumstances would it
be proper to consider the pharmacist as guilty of
the offense of simple imprudence with violation of
the regulation of the said faculty? The Supreme
Court has decided this question in the negative on
the ground that the fact of the pharmacist having
forgotten and left behind, during the short time he
was out walking, the key of the closet in which in
conformity with the pharmacy ordinances, he kept
the most powerful and active drugs, properly
considered, does not constitute the culpable
negligence referred to in article 581 of the Penal
Code, nor was it the proximate and immediate
cause of the said prescription being filled in his
store without being properly ratified by the
physician who signed it, as required by the said
ordinances. The Court held, therefore, that the trial
court committed an error of law in holding the
appellant liable. (Decision of December 23, 19881;
Official Gazette of April 14, 1882.)
See also the recent decision of the Tribunal Supremo
de Espaa dated July 11, 1906, wherein the doctrine is
reaffirmed in a case involving the alleged negligence of
certain railroad employees in handling railroad cars.
Doubtless a presumption of negligence will frequently
arise from the very fact that an accident occurred at
the time when the accused was violating a regulation;
especially if the regulation has for its object the
avoidance of such an accident. But this presumption
may, of course, be rebutted in criminal as well as in
civil cases by competent evidence. In the Federal Court
of the United States the rule is stated as follows:
Where a ship at the time of collision is in actual
violation of a statutory rule intended to prevent
collisions the burden is upon her of showing that
her fault could not have been a contributory cause
of the collision. (7 Cyc., 370 and numerous other
cases there cited.)
The evidence of record in the case at bar clearly and
satisfactorily discloses that even if the train was
running at a speed slightly in excess of the maximum
speed prescribed in the regulations, that fact had no
causal relation to the accident and in no wise
contributed to it.
The judgment convicting and sentencing the appellant
in this case should be reversed, and the accused
acquitted of the offense with which he is charged in the
information, and his bail bond exonerated, with the
costs of both instances de officio. So ordered.
Arellano, C. J., Johnson, Trent, and Araullo, JJ., concur.
Separate Opinions
TORRES, J., dissenting:
The writer is of the opinion that the defendant should
be sentenced for the crime of reckless negligence to
eight months of prision correccional, the accessories,
indemnity and costs with subsidiary imprisonment.
[G.R. No. 115024. February 7, 1996]
MA. LOURDES VALENZUELA, petitioner,
vs. COURT OF APPEALS, RICHARD LI and
ALEXANDER COMMERCIAL,
INC., respondents.
[G.R. No. 117944. February 7, 1996]
RICHARD LI, petitioner, vs. COURT OF APPEALS
and MA. LOURDES
VALENZUELA, respondents.
DECISION
KAPUNAN, J.:
These two petitions for review on certiorari under
Rule 45 of the Revised Rules of Court stem from an
action to recover damages by petitioner Lourdes
Valenzuela in the Regional Trial Court of Quezon City for
injuries sustained by her in a vehicular accident in the
early morning of June 24, 1990. The facts found by the
trial court are succinctly summarized by the Court of
Appeals below:
This is an action to recover damages based on quasi-
delict, for serious physical injuries sustained in a
vehicular accident.
Plaintiffs version of the accident is as follows: At
around 2:00 in the morning of June 24, 1990, plaintiff
Ma. Lourdes Valenzuela was driving a blue Mitsubishi
lancer with Plate No. FFU 542 from her restaurant at
Marcos highway to her home at Palanza Street, Araneta
Avenue. She was travelling along Aurora Blvd. with a
companion, Cecilia Ramon, heading towards the
direction of Manila. Before reaching A. Lake Street, she
noticed something wrong with her tires; she stopped at
a lighted place where there were people, to verify
whether she had a flat tire and to solicit help if needed.
Having been told by the people present that her rear
right tire was flat and that she cannot reach her home
in that cars condition, she parked along the sidewalk,
about 1 feet away, put on her emergency lights,
alighted from the car, and went to the rear to open the
trunk. She was standing at the left side of the rear of
her car pointing to the tools to a man who will help her
fix the tire when she was suddenly bumped by a 1987
Mitsubishi Lancer driven by defendant Richard Li and
registered in the name of defendant Alexander
Commercial, Inc. Because of the impact plaintiff was
thrown against the windshield of the car of the
defendant, which was destroyed, and then fell to the
ground. She was pulled out from under defendants car.
Plaintiffs left leg was severed up to the middle of her
thigh, with only some skin and sucle connected to the
rest of the body. She was brought to
the UERM Medical Memorial Center where she was
found to have a traumatic amputation, leg, left up to
distal thigh (above knee). She was confined in the
hospital for twenty (20) days and was eventually fitted
with an artificial leg. The expenses for the hospital
confinement (P 120,000.00) and the cost of the
artificial leg (P27,000.00) were paid by defendants
from the car insurance.
In her complaint, plaintiff prayed for moral damages in
the amount of P1 million, exemplary damages in the
amount of P100,000.00 and other medical and related
expenses amounting to a total of P180,000.00,
including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He
was on his way home, travelling at 55 kph; considering
that it was raining, visibility was affected and the road
was wet. Traffic was light. He testified that he was
driving along the inner portion of the right lane of
Aurora Blvd. towards the direction of Araneta Avenue,
when he was suddenly confronted, in the vicinity of A.
Lake Street, San Juan, with a car coming from the
opposite direction, travelling at 80 kph, with full bright
lights. Temporarily blinded, he instinctively swerved to
the right to avoid colliding with the oncoming vehicle,
and bumped plaintiffs car, which he did not see
because it was midnight blue in color, with no parking
lights or early warning device, and the area was poorly
lighted. He alleged in his defense that the left rear
portion of plaintiffs car was protruding as it was then at
a standstill diagonally on the outer portion of the right
lane towards Araneta Avenue (par. 18, Answer). He
confirmed the testimony of plaintiffs witness that after
being bumped the car of the plaintiff swerved to the
right and hit another car parked on the sidewalk.
Defendants counterclaimed for damages, alleging that
plaintiff was reckless or negligent, as she was not a
licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared
the vehicular accident report and the sketch of the
three cars involved in the accident, testified that the
plaintiffs car was near the sidewalk; this witness did
not remember whether the hazard lights of plaintiffs
car were on, and did not notice if there was an early
warning device; there was a street light at the corner of
Aurora Blvd. and F. Roman, about 100 meters away. It
was not mostly dark, i.e. things can be seen (p. 16, tsn,
Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified
that after plaintiff alighted from her car and opened the
trunk compartment, defendants car came approaching
very fast ten meters from the scene; the car was
zigzagging. The rear left side of plaintiffs car was
bumped by the front right portion of defendants car; as
a consequence, the plaintiffs car swerved to the right
and hit the parked car on the sidewalk. Plaintiff was
thrown to the windshield of defendants car, which was
destroyed, and landed under the car. He stated that
defendant was under the influence of liquor as he could
smell it very well (pp. 43, 79, tsn., June 17, 1991).
After trial, the lower court sustained the plaintiffs
submissions and found defendant Richard Li guilty of
gross negligence and liable for damages under Article
2176 of the Civil Code. The trial court likewise held
Alexander Commercial, Inc., Lis employer, jointly and
severally liable for damages pursuant to Article 2180. It
ordered the defendants to jointly and severally pay the
following amounts:
1. P41,840.00, as actual damages, representing the
miscellaneous expenses of the plaintiff as a result of
her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized
profits because of the stoppage of plaintiffs Bistro La
Conga restaurant three (3) weeks after the accident on
June 24, 1990; (b) P20,000.00, a month, as unrealized
profits of the plaintiff in her Bistro La Conga restaurant,
from August, 1990 until the date of this judgment; and
(c) P30,000.00, a month, for unrealized profits in
plaintiffs two (2) beauty salons from July, 1990 until the
date of this decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages,
5. P60,000.00, as reasonable attorneys fees; and
6. Costs.
As a result of the trial courts decision, defendants
filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case O.C.
No. 804367 (People vs. Richard Li), tending to show
that the point of impact, as depicted by the pieces of
glass/debris from the parties cars, appeared to be at
the center of the right lane of Aurora Blvd. The trial
court denied the motion. Defendants forthwith filed an
appeal with the respondent Court of Appeals. In a
Decision rendered March 30, 1994, the Court of
Appeals found that there was ample basis from the
evidence of record for the trial courts finding that the
plaintiffs car was properly parked at the right, beside
the sidewalk when it was bumped by defendants car.
[1]Dismissing the defendants argument that the
plaintiffs car was improperly parked, almost at the
center of the road, the respondent court noted that
evidence which was supposed to prove that the car
was at or near center of the right lane was never
presented during the trial of the case.[2] The respondent
court furthermore observed that:
Defendant Lis testimony that he was driving at a safe
speed of 55 km./hour is self serving; it was not
corroborated. It was in fact contradicted by eyewitness
Rodriguez who stated that he was outside his
beerhouse located at Aurora Boulevard after A. Lake
Street, at or about 2:00 a.m. of June 24, 1990 when his
attention was caught by a beautiful lady (referring to
the plaintiff) alighting from her car and opening the
trunk compartment; he noticed the car of Richard Li
approaching very fast ten (10) meters away from the
scene; defendants car was zigzagging, although there
were no holes and hazards on the street, and bumped
the leg of the plaintiff who was thrown against the
windshield of defendants car, causing its destruction.
He came to the rescue of the plaintiff, who was pulled
out from under defendants car and was able to say
hurting words to Richard Li because he noticed that the
latter was under the influence of liquor, because he
could smell it very well (p. 36, et. seq., tsn, June 17,
1991). He knew that plaintiff owned a beerhouse in Sta.
Mesa in the 1970s, but did not know either plaintiff or
defendant Li before the accident.
In agreeing with the trial court that the defendant
Li was liable for the injuries sustained by the plaintiff,
the Court of Appeals, in its decision, however, absolved
the Lis employer, Alexander Commercial, Inc. from any
liability towards petitioner Lourdes Valenzuela and
reduced the amount of moral damages to P500,000.00.
Finding justification for exemplary damages, the
respondent court allowed an award of P50,000.00 for
the same, in addition to costs, attorneys fees and the
other damages. The Court of Appeals, likewise,
dismissed the defendants counterclaims.[3]
Consequently, both parties assail the respondent
courts decision by filing two separate petitions before
this Court. Richard Li, in G.R. No. 117944, contends
that he should not be held liable for damages because
the proximate cause of the accident was Ma. Lourdes
Valenzuelas own negligence. Alternatively, he argues
that in the event that this Court finds him negligent,
such negligence ought to be mitigated by the
contributory negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma.
Lourdes Valenzuela assails the respondent courts
decision insofar as it absolves Alexander Commercial,
Inc. from liability as the owner of the car driven by
Richard Li and insofar as it reduces the amount of the
actual and moral damages awarded by the trial court.[4]
As the issues are intimately related, both petitions
are hereby consolidated. It is plainly evident that the
petition for review in G.R. No. 117944 raises no
substantial questions of law. What it, in effect, attempts
to have this Court review are factual findings of the
trial court, as sustained by the Court of Appeals finding
Richard Li grossly negligent in driving the Mitsubishi
Lancer provided by his company in the early morning
hours of June 24, 1990. This we will not do. As a
general rule, findings of fact of the Court of Appeals are
binding and conclusive upon us, and this Court will not
normally disturb such factual findings unless the
findings of fact of the said court are palpably
unsupported by the evidence on record or unless the
judgment itself is based on a misapprehension of facts.
[5]
In the first place, Valenzuelas version of the
incident was fully corroborated by an uninterested
witness, Rogelio Rodriguez, the owner-operator of an
establishment located just across the scene of the
accident. On trial, he testified that he observed a car
being driven at a very fast speed, racing towards the
general direction of Araneta Avenue.[6] Rodriguez
further added that he was standing in front of his
establishment, just ten to twenty feet away from the
scene of the accident, when he saw the car hit
Valenzuela, hurtling her against the windshield of the
defendants Mitsubishi Lancer, from where she
eventually fell under the defendants car.
Spontaneously reacting to the incident, he crossed the
street, noting that a man reeking with the smell of
liquor had alighted from the offending vehicle in order
to survey the incident.[7] Equally important, Rodriguez
declared that he observed Valenzuelas car parked
parallel and very near the sidewalk, [8] contrary to Lis
allegation that Valenzuelas car was close to the center
of the right lane. We agree that as between Lis self-
serving asseverations and the observations of a
witness who did not even know the accident victim
personally and who immediately gave a statement of
the incident similar to his testimony to the investigator
immediately after the incident, the latters testimony
deserves greater weight. As the court emphasized:
The issue is one of credibility and from Our own
examination of the transcript, We are not prepared to
set aside the trial courts reliance on the testimony of
Rodriguez negating defendants assertion that he was
driving at a safe speed. While Rodriguez drives only a
motorcycle, his perception of speed is not necessarily
impaired. He was subjected to cross-examination and
no attempt was made to question his competence or
the accuracy of his statement that defendant was
driving very fast. This was the same statement he gave
to the police investigator after the incident, as told to a
newspaper report (Exh. P). We see no compelling basis
for disregarding his testimony.
The alleged inconsistencies in Rodriguez testimony are
not borne out by an examination of the testimony.
Rodriguez testified that the scene of the accident was
across the street where his beerhouse is located about
ten to twenty feet away (pp. 35-36, tsn, June 17, 1991).
He did not state that the accident transpired
immediately in front of his establishment. The
ownership of the Lambingan sa Kambingan is not
material; the business is registered in the name of his
mother, but he explained that he owns the
establishment (p. 5, tsn., June 20, 1991).
Moreover, the testimony that the streetlights on his
side of Aurora Boulevard were on the night the
accident transpired (p. 8) is not necessarily
contradictory to the testimony of Pfc. Ramos that there
was a streetlight at the corner of Aurora
Boulevard and F. Roman Street (p. 45, tsn., Oct. 20,
1991).
With respect to the weather condition, Rodriguez
testified that there was only a drizzle, not a heavy rain
and the rain has stopped and he was outside his
establishment at the time the accident transpired (pp.
64-65, tsn., June 17, 1991). This was consistent with
plaintiffs testimony that it was no longer raining when
she left Bistro La Conga (pp. 10-11, tsn., April 29,
1991). It was defendant Li who stated that it was
raining all the way in an attempt to explain why he was
travelling at only 50-55 kph. (p. 11, tsn., Oct. 14,
1991). As to the testimony of Pfc. Ramos that it was
raining, he arrived at the scene only in response to a
telephone call after the accident had transpired (pp. 9-
10, tsn, Oct. 28, 1991). We find no substantial
inconsistencies in Rodriguezs testimony that would
impair the essential integrity of his testimony or reflect
on his honesty. We are compelled to affirm the trial
courts acceptance of the testimony of said eyewitness.
Against the unassailable testimony of witness
Rodriguez we note that Lis testimony was peppered
with so many inconsistencies leading us to conclude
that his version of the accident was merely adroitly
crafted to provide a version, obviously self-serving,
which would exculpate him from any and all liability in
the incident. Against Valenzuelas corroborated claims,
his allegations were neither backed up by other
witnesses nor by the circumstances proven in the
course of trial. He claimed that he was driving merely
at a speed of 55 kph. when out of nowhere he saw a
dark maroon lancer right in front of him, which was
(the) plaintiffs car. He alleged that upon seeing this
sudden apparition he put on his brakes to no avail as
the road was slippery.[9]
One will have to suspend disbelief in order to give
credence to Lis disingenuous and patently self-serving
asseverations. The average motorist alert to road
conditions will have no difficulty applying the brakes to
a car traveling at the speed claimed by Li. Given a light
rainfall, the visibility of the street, and the road
conditions on a principal metropolitan thoroughfare
like Aurora Boulevard, Li would have had ample time to
react to the changing conditions of the road if he were
alert - as every driver should be - to those conditions.
Driving exacts a more than usual toll on the senses.
Physiological fight or flight[10] mechanisms are at work,
provided such mechanisms were not dulled by drugs,
alcohol, exhaustion, drowsiness, etc. [11] Lis failure to
react in a manner which would have avoided the
accident could therefore have been only due to either
or both of the two factors: 1) that he was driving at a
very fast speed as testified by Rodriquez; and 2) that
he was under the influence of alcohol. [12] Either factor
working independently would have diminished his
responsiveness to road conditions, since normally he
would have slowed down prior to reaching Valenzuelas
car, rather than be in a situation forcing him to
suddenly apply his brakes. As the trial court noted
(quoted with approval by respondent court):
Secondly, as narrated by defendant Richard Li to the
San Juan Police immediately after the incident, he said
that while driving along Aurora Blvd., out of nowhere
he saw a dark maroon lancer right in front of him,
which was plaintiffs car, indicating, again, thereby that,
indeed, he was driving very fast, oblivious of his
surroundings and the road ahead of him, because if he
was not, then he could not have missed noticing at a
still far distance the parked car of the plaintiff at the
right side near the sidewalk which had its emergency
lights on, thereby avoiding forcefully bumping at the
plaintiff who was then standing at the left rear edge of
her car.
Since, according to him, in his narration to the San Juan
Police, he put on his brakes when he saw the plaintiffs
car in front of him, but that it failed as the road was
wet and slippery, this goes to show again, that,
contrary to his claim, he was, indeed, running very
fast. For, were it otherwise, he could have easily
completely stopped his car, thereby avoiding the
bumping of the plaintiff, notwithstanding that the road
was wet and slippery. Verily, since, if, indeed, he was
running slow, as he claimed, at only about 55
kilometers per hour, then, inspite of the wet and
slippery road, he could have avoided hitting the
plaintiff by the mere expedient or applying his brakes
at the proper time and distance.
It could not be true, therefore, as he now claims during
his testimony, which is contrary to what he told the
police immediately after the accident and is, therefore,
more believable, that he did not actually step on his
brakes, but simply swerved a little to the right when he
saw the on-coming car with glaring headlights, from
the opposite direction, in order to avoid it.
For, had this been what he did, he would not have
bumped the car of the plaintiff which was properly
parked at the right beside the sidewalk. And, it was not
even necessary for him to swerve a little to the right in
order to safely avoid a collision with the on-coming car,
considering that Aurora Blvd. is a double lane avenue
separated at the center by a dotted white paint, and
there is plenty of space for both cars, since her car was
running at the right lane going towards Manila and the
on-coming car was also on its right lane going to
Cubao.[13]
Having come to the conclusion that Li was
negligent in driving his company-issued Mitsubishi
Lancer, the next question for us to determine is
whether or not Valenzuela was likewise guilty of
contributory negligence in parking her car
alongside Aurora Boulevard, which entire area Li points
out, is a no parking zone.
We agree with the respondent court that
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. [14] Based on the foregoing definition, the
standard or act to which, according to petitioner Li,
Valenzuela ought to have conformed for her own
protection was not to park at all at any point of Aurora
Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to
recognize that an actor who is confronted with an
emergency is not to be held up to the standard of
conduct normally applied to an individual who is in no
such situation. The law takes stock of impulses of
humanity when placed in threatening or dangerous
situations and does not require the same standard of
thoughtful and reflective care from persons confronted
by unusual and oftentimes threatening conditions.
[15]
Under the emergency rule adopted by this Court
in Gan vs Court of Appeals, [16] 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
was brought by his own negligence.[17]
Applying this principle to a case in which the
victims in a vehicular accident swerved to the wrong
lane to avoid hitting two children suddenly darting into
the street, we held, in Mc Kee vs. Intermediate
Appellate Court,[18] that the driver therein, Jose Koh,
adopted the best means possible in the given situation
to avoid hitting the children. Using the emergency rule
the court concluded that Koh, in spite of the fact that
he was in the wrong lane when the collision with an
oncoming truck occurred, was not guilty of negligence.
[19]
While the emergency rule applies to those cases in
which reflective thought, or the opportunity to
adequately weigh a threatening situation is absent, the
conduct which is required of an individual in such cases
is dictated not exclusively by the suddenness of the
event which absolutely negates thoughtful care, but by
the over-all nature of the circumstances. A woman
driving a vehicle suddenly crippled by a flat tire on a
rainy night will not be faulted for stopping at a point
which is both convenient for her to do so and which is
not a hazard to other motorists. 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. It would be hazardous for her
not to stop and assess the emergency (simply because
the entire length of Aurora Boulevard is a no-parking
zone) because the hobbling vehicle would be both a
threat to her safety and to other motorists. In the
instant case, Valenzuela, upon reaching that portion
of Aurora Boulevard close to A. Lake St., noticed that
she had a flat tire. To avoid putting herself and other
motorists in danger, she did what was best under the
situation. As narrated by respondent court:
She stopped at a lighted place where there were
people, to verify whether she had a flat tire and to
solicit help if needed. Having been told by the people
present that her rear right tire was flat and that she
cannot reach her home she parked along the sidewalk,
about 1 feet away, behind a Toyota Corona Car. [20] In
fact, respondent court noted, Pfc. Felix Ramos, the
investigator on the scene of the accident confirmed
that Valenzuelas car was parked very close to the
sidewalk.[21] The sketch which he prepared after the
incident showed Valenzuelas car partly straddling the
sidewalk, clear and at a convenient distance from
motorists passing the right lane of Aurora Boulevard.
This fact was itself corroborated by the testimony of
witness Rodriguez.[22]
Under the circumstances described, Valenzuela
did exercise the standard reasonably dictated by the
emergency and could not be considered to have
contributed to the unfortunate circumstances which
eventually led to the amputation of one of her lower
extremities. The emergency which led her to park her
car on a sidewalk in Aurora Boulevard was not of her
own making, and it was evident that she had taken all
reasonable precautions.
Obviously in the case at bench, the only
negligence ascribable was the negligence of Li on the
night of the accident. Negligence, as it is commonly
understood is conduct which creates an undue risk of
harm to others.[23] It is the failure to observe that
degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other
person suffers injury.[24] We stressed, in Corliss vs.
Manila Railroad Company,[25] that negligence is the
want of care required by the circumstances.
The circumstances established by the evidence
adduced in the court below plainly demonstrate that Li
was grossly negligent in driving his Mitsubishi Lancer. It
bears emphasis that he was driving at a fast speed at
about 2:00 A.M. after a heavy downpour had settled
into a drizzle rendering the street slippery. There is
ample testimonial evidence on record to show that he
was under the influence of liquor. Under these
conditions, his chances of effectively dealing with
changing conditions on the road were significantly
lessened. As Prosser and Keaton emphasize:
[U]nder present day traffic conditions, any driver of an
automobile must be prepared for the sudden
appearance of obstacles and persons on the highway,
and of other vehicles at intersections, such as one who
sees a child on the curb may be required to anticipate
its sudden dash into the street, and his failure to act
properly when they appear may be found to amount to
negligence. [26]
Lis obvious unpreparedness to cope with the
situation confronting him on the night of the accident
was clearly of his own making.
We now come to the question of the liability of
Alexander Commercial, Inc. Lis employer. In denying
liability on the part of Alexander Commercial, the
respondent court held that:
There is no evidence, not even defendant Lis
testimony, that the visit was in connection with official
matters. His functions as assistant manager sometimes
required him to perform work outside the office as he
has to visit buyers and company clients, but he
admitted that on the night of the accident he came
from BF Homes Paraaque he did not have business
from the company (pp. 25-26, tsn, Sept. 23, 1991). The
use ofthe company car was partly required by the
nature of his work, but the privilege of using it for non-
official business is a benefit, apparently referring to the
fringe benefits attaching to his position.
Under the civil law, an employer is liable for the
negligence of his employees in the discharge of their
respective duties, the basis of which liability is
not respondeat superior, but the relationship of pater
familias, which theory bases the liability of the master
ultimately on his own negligence and not on that of his
servant (Cuison v. Norton and Harrison Co., 55 Phil. 18).
Before an employer may be held liable for the
negligence of his employee, the act or omission which
caused damage must have occurred while an
employee was in the actual performance of his
assigned tasks or duties (Francis High School vs. Court
of Appeals, 194 SCRA 341). In defining an employers
liability for the acts done within the scope of the
employees assigned tasks, the Supreme Court has held
that this includes any act done by an employee, in
furtherance of the interests of the employer or for the
account of the employer at the time of the infliction of
the injury or damage (Filamer Christian
Institute vs. Intermediate Appellate Court, 212 SCRA
637). An employer is expected to impose upon its
employees the necessary discipline called for in the
performance of any act indispensable to the business
and beneficial to their employer (at p. 645).
In light of the foregoing, We are unable to sustain the
trial courts finding that since defendant Li was
authorized by the company to use the company car
either officially or socially or even bring it home, he can
be considered as using the company car in the service
of his employer or on the occasion of his functions.
Driving the company car was not among his functions
as assistant manager; using it for non-official purposes
would appear to be a fringe benefit, one of the perks
attached to his position. But to impose liability upon
the employer under Article 2180 of the Civil Code,
earlier quoted, there must be a showing that the
damage was caused by their employees in the service
of the employer or on the occasion of their functions.
There is no evidence that Richard Li was at the time of
the accident performing any act in furtherance of the
companys business or its interests, or at least for its
benefit. The imposition of solidary liability against
defendant Alexander Commercial Corporation must
therefore fail.[27]
We agree with the respondent court that the
relationship in question is not based on the principle
of respondeat superior, which holds the master liable
for acts of the servant, 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. It is up to this point, however, that our
agreement with the respondent court ends. Utilizing
the bonus pater familias standard expressed in Article
2180 of the Civil Code, [28] we are of the opinion that Lis
employer, Alexander Commercial, Inc. is jointly and
solidarily liable for the damage caused by the accident
of June 24, 1990.
First, the case of St. Francis High School vs. Court
of Appeals[29] upon which respondent court has placed
undue reliance, dealt with the subject of a school and
its teachers supervision of students during an
extracurricular activity. These cases now fall under the
provision on special parental authority found in Art.
218 of the Family Code which generally encompasses
all authorized school activities, whether inside or
outside school premises.
Second, the employers primary liability under the
concept of pater familias embodied by Art. 2180 (in
relation to Art. 2176) of the Civil Code is quasi-delictual
or tortious in character. His liability is relieved on a
showing that he exercised the diligence of a good
father of the family in the selection and supervision of
its 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.
Ordinarily, evidence demonstrating that the
employer has exercised diligent supervision of its
employee during the performance of the latters
assigned tasks would be enough to relieve him of the
liability imposed by Article 2180 in relation to Article
2176 of the Civil Code. The employer is not expected to
exercise supervision over either the employees private
activities or during the performance of tasks either
unsanctioned by the former or unrelated to the
employees tasks. The case at bench presents a
situation of a different character, involving a practice
utilized by large companies with either their employees
of managerial rank or their representatives.
 It is customary for large companies to provide
certain classes of their employees with courtesy
vehicles. These company cars are either wholly owned
and maintained by the company itself or are subject to
various plans through which employees eventually
acquire their vehicles after a given period of service, or
after paying a token amount. Many companies provide
liberal car plans to enable their managerial or other
employees of rank to purchase cars, which, given the
cost of vehicles these days, they would not otherwise
be able to purchase on their own.
Under the first example, the company actually
owns and maintains the car up to the point of turnover
of ownership to the employee; in the second example,
the car is really owned and maintained by the
employee himself. In furnishing vehicles to such
employees, are companies totally absolved of
responsibility when an accident involving a company-
issued car occurs during private use after normal office
hours?
Most pharmaceutical companies, for instance,
which provide cars under the first plan, require rigorous
tests of road worthiness from their agents prior to
turning over the car (subject of company maintenance)
to their representatives. In other words, like a good
father of a family, they entrust the company vehicle
only after they are satisfied that the employee to
whom the car has been given full use of the said
company car for company or private purposes will not
be a threat or menace to himself, the company or to
others. When a company gives full use and enjoyment
of a company car to its employee, it in effect
guarantees that it is, like every good father, satisfied
that its employee will use the privilege reasonably and
responsively.
In the ordinary course of business, not all
company employees are given the privilege of using a
company-issued car. For large companies other than
those cited in the example of the preceding paragraph,
the privilege serves important business purposes either
related to the image of success an entity intends to
present to its clients and to the public in general, or for
practical and utilitarian reasons - to enable its
managerial and other employees of rank or its sales
agents to reach clients conveniently. In most cases,
providing a company car serves both purposes. Since
important business transactions and decisions may
occur at all hours in all sorts of situations and under all
kinds of guises, the provision for the unlimited use of a
company car therefore principally serves the business
and goodwill of a company and only incidentally the
private purposes of the individual who actually uses
the car, the managerial employee or company sales
agent. As such, in providing for a company car for
business use and/or for the purpose of furthering the
companys image, a company owes a responsibility to
the public to see to it that the managerial or other
employees to whom it entrusts virtually unlimited use
of a company issued car are able to use the company
issue capably and responsibly.
In the instant case, Li was an Assistant Manager of
Alexander Commercial, Inc. In his testimony before the
trial court, he admitted that his functions as Assistant
Manager did not require him to scrupulously keep
normal office hours as he was required quite often to
perform work outside the office, visiting prospective
buyers and contacting and meeting with company
clients.[30] These meetings, clearly, were not strictly
confined to routine hours because, as a managerial
employee tasked with the job of representing his
company with its clients, meetings with clients were
both social as well as work-related functions. The
service car assigned to Li by Alexander Commercial,
Inc. therefore enabled both Li - as well as the
corporation - to put up the front of a highly successful
entity, increasing the latters goodwill before its
clientele. It also facilitated meeting between Li and its
clients by providing the former with a convenient mode
of travel.
Moreover, Lis claim that he happened to be on the
road on the night of the accident because he was
coming from a social visit with an officemate in
Paraaque was a bare allegation which was never
corroborated in the court below. It was obviously self-
serving. Assuming he really came from his officemates
place, the same could give rise to speculation that he
and his officemate had just been from a work-related
function, or they were together to discuss sales and
other work related strategies.
In fine, 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. [31] Not having been
able to overcome the burden of demonstrating that it
should be absolved of liability for entrusting its
company car to Li, said company, based on the
principle of bonus pater familias, ought to be jointly
and severally liable with the former for the injuries
sustained by Ma. Lourdes Valenzuela during the
accident.
Finally, we find no reason to overturn the amount
of damages awarded by the respondent court, except
as to the amount of moral damages. In the case of
moral damages, while the said damages are not
intended to enrich the plaintiff at the expense of a
defendant, the award should nonetheless be
commensurate to the suffering inflicted. In the instant
case we are of the opinion that the reduction in moral
damages from an amount of P 1,000,000.00 to
P500,000.00 by the Court of Appeals was not justified
considering the nature of the resulting damage and the
predictable sequelae of the injury.
As a result of the accident, Ma. Lourdes Valenzuela
underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of
the full ambulatory functions of her left extremity, even
with the use of state of the art prosthetic technology.
Well beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic
replacements and months of physical and occupational
rehabilitation and therapy. During her lifetime, the
prosthetic devise will have to be replaced and re-
adjusted to changes in the size of her lower limb
effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting
from a precipitate decrease in calcium levels observed
in the bones of all post-menopausal women. In other
words, the damage done to her would not only be
permanent and lasting, it would also be permanently
changing and adjusting to the physiologic changes
which her body would normally undergo through the
years. The replacements, changes, and adjustments
will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has
been documented, are painful.
The foregoing discussion does not even scratch
the surface of the nature of the resulting damage
because it would be highly speculative to estimate the
amount of psychological pain, damage and injury which
goes with the sudden severing of a vital portion of the
human body. A prosthetic device, however
technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions
of the lower limb. The sensory functions are forever
lost. The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are
inestimable.
As the amount of moral damages are subject to
this Courts discretion, we are of the opinion that the
amount of P1,000,000.00 granted by the trial court is
in greater accord with the extent and nature of the
injury -. physical and psychological - suffered by
Valenzuela as a result of Lis grossly negligent driving of
his Mitsubishi Lancer in the early morning hours of the
accident.
WHEREFORE, PREMISES CONSIDERED, the
decision of the court of Appeals is modified with the
effect of REINSTATING the judgment of the Regional
Trial Court.
SO ORDERED.
Padilla, Bellosillo, and Hermosisima, Jr., JJ., concur.
Vitug., J., see concurring opinion.
G.R. No. L-35283 November 5, 1932
JULIAN DEL ROSARIO, plaintiff-appellant, vs.MANILA
ELECTRIC COMPANY, defendant-appellee.
Vicente Sotto for appellant.
Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr.
for appellee.
STREET, J.:
This action was instituted by Julian del Rosario for the
purpose of recovering damages from the Manila
Electric Company for the death of his son, Alberto del
Rosario, resulting from a shock from a wire used by the
defendant for the transmission of electricity. The
accident occurred on Dimas-Alang Street, in the
municipality of Caloocan, Province of Rizal. Damages
are claimed in the complaint in the amount of P30,000.
Upon hearing the cause the trial court absolved the
defendant, and the plaintiff appealed.
Shortly after 2 o'clock on the afternoon of August 4,
1930, trouble developed in a wire used by the
defendant on Dimas-Alang Street for the purpose of
conducting electricity used in lighting the City of Manila
and its suburbs. Jose Noguera, who had charge of a
tienda nearby, first noticed that the wire was burning
and its connections smoking. In a short while the wire
parted and one of the ends of the wire fell to the
ground among some shrubbery close to the way. As
soon as Noguera took cognizance of the trouble, he
stepped into a garage which was located nearby and
asked Jose Soco, the timekeeper, to telephone the
Malabon station of the Manila Electric Company that an
electrical wire was burning at that place. Soco
transmitted the message at 2.25 p.m. and received
answer from the station to the effect that they would
send an inspector. From the testimony of the two
witnesses mentioned we are justified in the conclusion
that information to the effect that the electric wire at
the point mentioned had developed trouble was
received by the company's servant at the time stated.
At the time that message was sent the wire had not yet
parted, but from the testimony of Demetrio Bingao,
one of the witnesses for the defense, it is clear that the
end of the wire was on the ground shortly after 3 p.m.
At 4 p. m. the neighborhood school was dismissed and
the children went home. Among these was Alberto del
Rosario, of the age of 9 years, who was a few paces
ahead of two other boys, all members of the second
grade in the public school. These other two boys were
Jose Salvador, of the age of 8, and Saturnino Endrina,
of the age of 10. As the three neared the place where
the wire was down, Saturnino made a motion as if it
touch it. His companion, Jose Salvador, happened to be
the son of an electrician and his father had cautioned
him never to touch a broken electrical wire, as it might
have a current. Jose therefore stopped Saturnino,
telling him that the wire might be charged. Saturnino
yielded to this admonition and desisted from his
design, but Alberto del Rosario, who was somewhat
ahead, said, I have for some time been in the habit of
touching wires ("Yo desde hace tiempo cojo alambres").
Jose Salvador rejoined that he should into touch wires
as they carry a current, but Alberto, no doubt feeling
that he was challenged in the matter, put out his index
finger and touch the wire. He immediately fell face
downwards, exclaiming "Ay! madre". The end of the
wire remained in contact with his body which fell near
the post. A crowd soon collected, and some one cut the
wire and disengaged the body. Upon being taken to St.
Luke's Hospital the child was pronounced dead.
The wire was an ordinary number 6 triple braid weather
proof wire, such as is commonly used by the defendant
company for the purpose of conducting electricity for
lighting. The wire was cased in the usual covering, but
this had been burned off for some distance from the
point where the wire parted. The engineer of the
company says that it was customary for the company
to make a special inspection of these wires at least
once in six months, and that all of the company's
inspectors were required in their daily rounds to keep a
lookout for trouble of this kind. There is nothing in the
record indicating any particular cause for the parting of
the wire.lawphil.net
We are of the opinion that the presumption of
negligence on the part of the company from the
breakage of this wire has not been overcome, and the
defendant is in our opinion responsible for the
accident. Furthermore, when notice was received at the
Malabon station at 2.25 p. m., somebody should have
been dispatched to the scene of the trouble at once, or
other measures taken to guard the point of danger; but
more than an hour and a half passed before anyone
representing the company appeared on the scene, and
in the meantime this child had been claimed as a
victim.
It is doubtful whether contributory negligence can
properly be imputed to the deceased, owing to his
immature years and the natural curiosity which a child
would feel to do something out of the ordinary, and the
mere fact that the deceased ignored the caution of a
companion of the age of 8 years does not, in our
opinion, alter the case. But even supposing that
contributory negligence could in some measure be
properly imputed to the deceased, a proposition
upon which the members of the court do not all agree,
yet such negligence would not be wholly fatal to the
right of action in this case, not having been the
determining cause of the accident. (Rakes vs. Atlantic,
Gulf and Pacific Co., 7 Phil., 359.)
With respect to the amount of damages recoverable
the majority of the members of this court are of the
opinion that the plaintiff is entitled to recover P250 for
expenses incurred in connection with the death and
burial of the boy. For the rest, in accordance with the
precedents cited in Astudillo vs. Manila Electric
Company (55 Phil., 427), the majority of the court are
of the opinion that the plaintiff should recover the sum
of P1,000 as general damages for loss of service.
The judgment appealed from is therefore reversed and
the plaintiff will recover of the defendant the sum of
P1,250, with costs of both instances. So ordered.
Separate Opinions
ABAD SANTOS, J., concurring in part and dissenting
in part:
I concur in so far as the defendant company is held
liable for the death of the plaintiff's son, but I dissent in
so far as the decision allows the plaintiff to recover of
the defendant the sum of P1,250 only.
It is well settled in this jurisdiction that an action will lie
to recover damages for death caused by the wrongful
act. (Manzanares vs. Moreta, 38 Phil., 821.) The
question, however, arises as to the amount of damages
recoverable in this case. In criminal cases, this court
has adopted the rule of allowing, as a matter of course,
the sum of P1,000 as indemnity to the heirs of the
deceased. Following that rule, the court has allowed
the plaintiff in this case to recover the sum of P1,000
as general damages for loss of service. Whatever may
be the reasons for the rule followed in criminal cases, I
am of the opinion that those reasons do not obtain in
fixing the amount of the damages recoverable in the
present case. The indemnity allowed in criminal case is
merely incidental to the main object sought, which is
the punishment of the guilty party. In a civil action, the
principal object is the recovery of damages for
wrongful death; and where, as in this case, the
defendant is a corporation, not subject to criminal
prosecution for the act complained of, the question
assumes a vastly different aspect. Both in reason and
in justice, there should be a distinction between the
civil liability of an ordinary person who, by wrongful
act, has caused the death of another; and the civil
liability of a corporation, organized primarily for profit,
which has caused the death of a person by failure to
exercise due care in the prosecution of its business.
The liability of such a corporation for damages must be
regarded as a part of the risks which it assumes when
it undertakes to promote its own business; and just as
it is entitled to earn adequate profits from its business,
so it should be made adequately to compensate those
who have suffered damage by its negligence.
Considering the circumstances of this case, I am of the
opinion that the plaintiff should recover the sum of
P2,250 as damages.

Avancea, C.J., Malcolm, Ostrand, Villa-Real, Vickers,

Imperial and Butte, JJ., concur.