PICART vs.

SMITH
Where both parties are negligent, how do we determine who is
at fault? What is the Doctrine of the Last Clear Chance?
In this case, Picart, riding on his pony, met a collision with an
automobile. He then asks for damages for the injuries he suffered. As the
Court explains both parties are negligent. It is therefore incumbent upon the
Court to determine whether Picart, being negligent, would still be adjudged
with damages. To resolve the case, the Court applied the Doctrine of the
Last Clear Chance:
xxx The doctrine applies only in a situation where the plaintif
was guilty of prior or antecedent negligence but the
defendant, who had the last fair chance to avoid the
impending harm and failed to do so, is made liable for all the
consequences of the accident notwithstanding the prior
negligence of the plaintif
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 plaintif 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 xxx
It must be emphasized that in applying this doctrine, the petitioner is
not freed from liability. Since both parties are at fault, the damages awarded
shall be mitigated to compensate for the other partys contributory
negligence. As explained in the cited case, Rkes vs. Atlantic:
xxx 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
plaintif xxx
The Court also introduced the criteria in determining negligence, to wit:
xxx Conduct is said to be negligent when a prudent man in the
position of the tortfeasor would have foreseen that an efect
harmful to another was sufficiently probable to warrant his
foregoing conduct or guarding against its consequences.
 By applying the doctrine it can be said that the act of the defendant is
the proximate cause of the injury while that of the plaintiff is the remote
cause.
xxx 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 plaintif was a more remote factor in
the case xxx

Bustamante vs. CA
GR No. 89880
February 6, 1991

What are the exceptions in applying the Doctrine of the Last

Clear Chance?

The petitioners are parents of deceased passengers asking for

damages resulting to the death of their sons and daughters. This was caused
by the collision of the bus passenger with the truck. The petitioners therefore
prays a collection for damages against the driver and owner of the truck.
The CA using the doctrine of last clear chance absolved the truck
driver imputing that the negligence of the bus driver is the proximate cause
of the injury. Furthermore, the latter has the last clear chance to minimize
the peril but it failed to do so.

xxx the bus driver had the last clear chance to avoid the collision
and his reckless negligence in proceeding to overtake the hand tractor
was the proximate cause of the collision." (Rollo, p. 95). Said court also
noted that "the record also discloses that the bus driver was not a
competent and responsible driver. His driver's license was
confiscated for a traffic violation on April 17, 1983 and he was using
a ticket for said traffic violation on the day of the accident in question
(pp. 16-18, TSN, July 23, 1984). He also admitted that he was not a
regular driver of the bus that figured in the mishap and was not given
any practical examination xxx

The Court judged differently assailing that the last clear chance does
not apply in the case at hand. The exceptions of application of the doctrine
was promulgated by the Court in this case:
 xxx the principle of "last clear chance" applies "in a suit between the
owners and drivers of colliding vehicles. It 1) does not arise where a
passenger demands responsibility from the carrier to enforce
its contractual obligations. For it would be inequitable to exempt
the negligent driver of the jeepney and its owners on the ground that
the other driver was likewise guilty of negligence."

Furthermore, "as between defendants: The doctrine cannot be

extended into the field of 2) joint tortfeasors as a test of whether
only one of them should be held liable to the injured person by
reason of his discovery of the latter's peril, and it cannot be
invoked as between 3) defendants concurrently negligent. As
against third persons, a negligent actor cannot defend by pleading that
another had negligently failed to take action which could have avoided
the injury." Xxx

Since the case at bar is not a suit between the owners and drivers of
the colliding vehicles but a suit brought by the heirs of the deceased
passengers against both owners and drivers of the colliding vehicles.
Therefore, the respondent court erred in absolving the owner and driver of
the cargo truck from liability.

Phoenix vs. IAC

GR No. L-65295
March 10, 1987

A dump truck, owned by Phoenix, 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.
Dionisio, private respondent, 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. He now asks for damages alleging that the
proximate cause of suffering the same is the negligent act of the driver.

Petitioner assails that Dionisios act is a sufficient intervening cause,

and that their drivers negligent act is only a passive and static condition.

Sufficient intervening cause vis--vis passive static condition

vis--vis forseeable intervening cause:

It has been agreed upon that indeed Dionisio was also negligent. He
was hurrying home that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the intersection of General
Lacuna and General Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane. But nonetheless, the
proximate cause of his injury is the negligent act of the driver parking his
truck in a skew.

The truck driver whether or not created a passive and static

condition is immaterial. As explained in this case:

xxx Cause and condition. Many courts have sought to distinguish

between the active "cause" of the harm and the existing "conditions"
upon which that cause operated. If the defendant has created only
a passive static condition which made the damage possible,
the defendant is said not to be liable. But so far as the fact of
causation is concerned, in the sense of necessary antecedents which
have played an important part in producing the result it is quite
impossible to distinguish between active forces and passive situations,
particularly since, as is invariably the case, the latter are the result of
other active forces which have gone before. The defendant who spills
gasoline about the premises creates a "condition," but the act may be
culpable because of the danger of fire. When a spark ignites the
gasoline, the condition has done quite as much to bring about the fire
as the spark; and since that is the very risk which the defendant has
created, the defendant will not escape responsibility. Even the lapse
of a considerable time during which the "condition" remains
static will not necessarily afect liability; one who digs a trench in
the highway may still be liable to another who fans into it a month
afterward. "Cause" and "condition" still find occasional mention in the
decisions; but the distinction is now almost entirely discredited. So far
as it has any validity at all, it must refer to the type of case where the
forces set in operation by the defendant have come to rest in a
position of apparent safety, and some new force intervenes. But even
in such cases, it is not the distinction between "cause" and
"condition" which is important but the nature of the risk and
the character of the intervening cause xxx

As the Court ruled, there is no distinction whether a person

provided a static condition only or an active force as long it has created
a risk in which an injury later resulted. The improper parking of the
dump truck created an unreasonable risk of injury for anyone
driving down General Lacuna Street and for having so created
this risk, the truck driver must be held responsible.

Moreover, the negligent act of Dionisio is not just an

ordinary intervening cause but a forseeable intervening cause:
 xxx Foreseeable Intervening Causes. If the intervening cause
is one which in ordinary human experience is reasonably
to be anticipated or one which the defendant has reason
to anticipate under the particular circumstances, the
defendant may be negligence among other reasons,
because of failure to guard against it; or the defendant
may be negligent only for that reason. Thus one who sets a
fire may be required to foresee that an ordinary, usual and
customary wind arising later wig spread it beyond the
defendant's own property, and therefore to take precautions to
prevent that event. The person who leaves the combustible or
explosive material exposed in a public place may foresee the risk
of fire from some independent source. ... In all of these cases
there is an intervening cause combining with the defendant's
conduct to produce the result and in each case the defendant's
negligence consists in failure to protect the plaintiff against that
very risk.

Obviously the defendant cannot be relieved from liability by the

fact that the risk or a substantial and important part of the risk,
to which the defendant has subjected the plaintiff has indeed
come to pass. Foreseeable intervening forces are within
the scope original risk, and hence of the defendant's
negligence. The courts are quite generally agreed that
intervening causes which fall fairly in this category will
not supersede the defendant's responsibility xxx

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.

Doctrine of last clear chance vis--vis comparative negligence

Lastly, the truck driver assails the doctrine of the last clear chance
that 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.
xxx 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. 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 plaintif, has itself been rejected, as it has
been in Article 2179 of the Civil Code of the Philippines xxx
This means that even if the doctrine of last clear chance indeed
exists, it does not rule in the favor of the defendant alone. The
petitioner being equally negligent must bear a part of his suffering.
ART. 2179 of the Civil Code provides:
When the plaintifs own negligence was the immediate
cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and
proximate cause of the injury being the defendants lack of
due care, the plaintif may recover damages, but the courts
shall mitigate the damages to be awarded.
xxx 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 xxx
The comparative negligence of Dionisio led the court to
mitigate the award of damages, 20-80 ratio to the favor of Dionisio.

Glan vs. IAC

GR No. 70493
May 18, 1989
 The case involves a collision between a jeepney and a truck
carrying various hard ware materials owned by the petitioner. It resulted to
the death of some passengers, hence, the family of the deceased herein
private respondents ask for damages. From the investigations of policemen
and testimony of witnesses, the jeepney was found beyond the demarcation
line in the middle of the road, this means he is outside his lane. Furthermore,
the jeepney was in zig zagged manner before the collision.
The Court applying the doctrine of the last clear chance absolved
the petitioner. This case clearly manifest an exemption of the
comparative negligence applicable to two negligent parties.
Allegedly, the truck driver was not negligent because he has prevented the
impending peril against the jeepney driver.
xxx From these facts the logical conclusion emerges that the driver
of the jeep had what judicial doctrine has appropriately
called the last clear chance to avoid the accident, while
still at that distance of thirty meters from the truck, by
stopping in his turn or swerving his jeep away from the
truck, either of which he had sufficient time to do while running at
a speed of only thirty kilometers per hour. In those circumstances,
his duty was to seize that opportunity of avoidance, not merely
rely on a supposed right to expect, as the Appellate Court would
have it, the truck to swerve and leave him a clear path xxx
The Court similarly applied the explanation enshrined in the doctrinal case of
Picart vs. Smith:
xxx 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 plaintif 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 xxx
According to the Court, the death of the jeepney driver was caused
by his negligent act of not impeding the peril which is within his control to
desist. This case strictly applied the doctrine clearly deviating from latter
jurisprudence applying a comparative negligence between the parties. As the
Court has proven, the truck was already in the full stop. There is
indeed an intervening time between the acts of the parties, hence,
clearly exonerating the truck driver from liability. The intervening
time should have been used by the jeepney driver to save himself.
xxx Compassion for the plight of those whom an accident has robbed
of the love and support of a husband and father is an entirely natural
and understandable sentiment. It should not, however, be allowed to
stand in the way of, much less to influence, a just verdict in a suit at
law xxx
 Pantranco vs. Baesa
GR No. 79050-51
November 14, 1989

The Doctrine of Last Clear Chance is not applied in blanket. The

collision of a bus and jeepney in this case has led the Court to re-emphasized
two basic exemptions in the application of the doctrine.
xxx 1) it is necessary to show that the person who allegedly
had the last opportunity to avert the accident was aware of the
existence of the peril or should, with exercise of due care,
have been aware of it. One cannot be expected to avoid an accident
or injury if he does not know or could not have known the existence of
the peril. In this case, there is nothing to show that the jeepney driver
David Ico knew of the impending danger. When he saw at a distance
that the approaching bus was encroaching on his lane, he did not
immediately swerve the jeepney to the dirt shoulder on his
right since he must have assumed that the bus driver will
return the bus to its own lane upon seeing the jeepney
approaching from the opposite direction xxx
xxx a motorist who is properly proceeding on his own side of the
highway is generally entitled to assume that an approaching vehicle
coming towards him on the wrong side, will return to his proper lane of
traffic. There was nothing to indicate to David Ico that the bus could
not return to its own lane or was prevented from returning to the
proper lane by anything beyond the control of its driver xxx
Moreover, even if the jeepney had known the peril, the Court reiterated
that it would be impossible for anyone to prevent the same.
xxx By the time David Ico must have realized that the bus was not
returning to its own lane, it was already too late to swerve the
jeepney to his right to prevent an accident. The speed at which
the approaching bus was running prevented David Ico from
swerving the jeepney to the right shoulder of the road in time
to avoid the collision. Thus, even assuming that the jeepney driver
perceived the danger a few seconds before the actual collision, he had
no opportunity to avoid it. This Court has held that the last clear
chance doctrine 2) "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" xxx
Hence, it is the bus company who should bear the loss. It is his failure
in going back to his own lane upon seeing the jeepney which caused
the injury, thereby making his negligent act as the proximate cause.
Since the case at hand asked for damages arising from quasi
delict, the company alleviated itself from liability assailing the diligence
of a good father in supervision and election of its employees.
The Court ruled in the negative:
xxx When an injury is caused by the negligence of an employee,
there instantly arises a presumption that the employer has been
negligent either in the selection of his employees or in the
supervision over their acts. Although this presumption is
only a disputable presumption which could be overcome
by proof of diligence of a good father of a family, this
Court believes that the evidence submitted by the
defendant to show that it exercised the diligence of a
good father of a family in the case of Ramirez, as a
company driver is far from sufficient. No support evidence
has been adduced. The professional drivers license of Ramirez
has not been produced. There is no proof that he is between 25
to 38 years old. There is also no proof as to his educational
attainment, his age, his weight and the fact that he is married or
not. Neither are the result of the written test, psychological and
physical test, among other tests, have been submitted in
evidence [sic]. His NBI or police clearances and clearances from
previous employment were not marked in evidence. No evidence
was presented that Ramirez actually and really attended the
seminars xxx
 Philippine Bank of Commerce vs. CA
GR No. 97626
March 14, 1997

Private respondent, RMC Company, assails damages against the

Bank for allegedly allowing its deposit to be accounted in the account
another. Allegedly, their company secretary, Yabut, deposited instead
in the account of his husband the earnings of the company. Private
respondent asks for reimbursement of the amount P304,979.74. by
virtue of quasi delict:
There are three elements of a quasi-delict: (a) damages
sufered by the plaintif; (b) fault or negligence of the
defendant, or some other person for whose acts he must
respond; and (c) the connection of cause and efect between
the fault or negligence of the defendant and the damages
incurred by the plaintif.
The test by which to determine the existence of negligence in a
particular case which may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence. (Picart vs. Smith)
Applying the same, the proximate cause of the injury suffered by
the Bank is:
xxx the bank's teller, Ms. Azucena Mabayad, was
negligent in validating, officially stamping and signing all
the deposit slips prepared and presented by Ms. Yabut,
despite the glaring fact that the duplicate copy was not
completely accomplished contrary to the self-imposed procedure
of the bank with respect to the proper validation of deposit slips,
original or duplicate xxx
xxx proximate cause [is defined] as "that cause, which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred. . . ."
PROXIMATE CAUSE: In this case, absent the act of Ms. Mabayad
in negligently validating the incomplete duplicate copy of the
deposit slip, Ms. Irene Yabut would not have the facility with which
to perpetrate her fraudulent scheme with impunity.
Even applying the Doctrine of the Last Clear Chance would still
hold the fact the bank has the last fair chance to avoid the peril:
xxx Here, assuming that private respondent RMC was negligent in
entrusting cash to a dishonest employee, thus providing the latter with
the opportunity to defraud the company, as advanced by the
petitioner, yet it cannot be denied that the petitioner bank, thru its
teller, had the last clear opportunity to avert the injury incurred by its
client, simply by faithfully observing their self-imposed validation
procedure xxx
However, it cannot be denied that the company is equally
negligent. It was negligent in not checking its monthly statements of
account. Had it done so, the company would have been alerted to the
series of frauds being committed against RMC by its secretary. This
calls for the application of comparative negligence:
Article 2179 of the New Civil Code, to wit:
xxx When the plaintif's own negligence was the
immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintif may recover
damages, but the courts shall mitigate the damages to be
awarded xxx
This prompted the Court to divide the damages with the ratio 60-40, in
favor of private respondent.
 Ong vs. Metropolitan Water District
GR No. L-7664
August 29, 1958

A young boy 14 years of age was found dead in one of the pools of the
respondent. Allegeing negligence in the respondent to assure the safety of
its customer, the parents of the deceased come before the Court praying for
damages arising from quasi delict.
The lower courts however found that the respondent is not remised in
its duty since every precaution or warning is available in the premises. Life
guards and other life saving materials can also be easily availed by
customer. Moreover, the life guard on duty upon knowing the situation
immediately went to the relied of the boy. The respondents relief operations
team earnestly did their best thereafter to save the life of the boy. However,
the boy has been lifeless already prior to the same.
Petitioner now rests to the Doctrine of Last Clear Chance, explaining
that even if Ong was indeed at fault, the respondent has the last fair chance
or opportunity to save the boys life.
The Court ruled in the negative assailing that the doctrine does
not apply in this case.
xxx Since it is not known how minor Ong came into the big swimming
pool and it being apparent that he went 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 responded to the call for help
as soon as his attention was called to it and immediately after
retrieving the body all efforts at the disposal of appellee had been put
into play in order to bring him back to life, it is clear that there is no
 room for the application of the doctrine now invoked by appellants to
impute liability to appellee..
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 xxx

Anuran vs. Buno

GR No. L-21353
May 20, 1996

A passenger jeepney was parked on the road to Taal, Batangas. A

motor truck speeding along, negligently bumped it from behind, with such
violence that three of its passengers died, even as two others suffered
injuries that required their confinement. Hence, So, these suits were
instituted by the representatives of the dead and of the injured, to recover
consequently damages against the driver and the owners of the truck and
also against the driver and the owners of the jeepney.
The CA exonerated the owners and drivers of the jeepney using the
Doctrine of the Last Clear Chance:
xxx It explained that although "the driver of the ill-starred vehicle was
not free from fault, for he was guilty of an antecedent negligence in
parking his vehicle with a portion thereof occupying the asphalted
road", it considered the truck driver guilty of greater
negligence which was the efficient cause of the collision; and
applying the doctrine of the "last clear chance" said Court
ordered the owners of the truck to pay, solidarily with its
driver xxx
 The Court finds the reasoning of the CA erroneous. This case warrants
the exemption of the application of the doctrine.
xxx The principle about the "last clear chance" would call for
application in a suit between the owners and drivers of the two
colliding vehicles. It does not arise where a passenger demands
responsibility from the carrier to enforce its contractual
obligations. For it would be inequitable to exempt the negligent driver
of the jeepney and its owners on the ground that the other driver was
likewise guilty of negligence xxx
As the Court further explained, the common carries, by operation of
law, is obliged to observe utmost diligence towards their passengers.
xxx It must be remembered that the obligation of the carrier to
transport its passengers safely is such that the New Civil Code
requires "utmost diligence" from the carriers (Art. 1755) who
are "presumed to have been at fault or to have acted
negligently, unless they prove that they have observed
extraordinary diligence" (Art. 1756). In this instance, this legal
presumption of negligence is confirmed by the Court of Appeals'
finding that the driver of the jeepney in question was at fault in parking
the vehicle improperly. It must follow that the driver and the owners
of the jeepney must answer for injuries to its passengers xxx

Raynera vs. Hiceta

GR No. 120027
April 21, 1999

Reynaldo Raynera, the deceased, crashed his motorcycle into the left
rear portion of the truck trailer, which was without tail lights. Due to the
collision, Reynaldo sustained head injuries and truck helper Geraldino D.
Lucelo rushed him to the Paraaque Medical Center. Upon arrival at the
hospital, the attending physician pronounced Reynaldo Raynera dead on
arrival. The family of the deceased now asks for damages.
Imputing the Doctrine of Last Clear Chance, the Court ruled in favor of
the truck driver.
xxx We find that the direct cause of the accident was the
negligence of the victim. Traveling behind the truck, he had
the responsibility of avoiding bumping the vehicle in front of
 him. He was in control of the situation. His motorcycle was
equipped with headlights to enable him to see what was in front of
him. He was traversing the service road where the prescribed speed
limit was less than that in the highway xxx
NEGLIGENCE: The omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct
of human affairs, would do, or the doing of something, which a prudent
and reasonable man would not do.
PROXIMATE CAUSE: cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred.
The doctrine imposts that between two negligent parties, the person
who has the last fair chance or opportunity to prevent the peril but fails to do
so shall suffer the consequences.
xxx It has been said that drivers of vehicles who bump the rear
of another vehicle are presumed to be the cause of the
accident, unless contradicted by other evidence. The rationale
behind the presumption is that the driver of the rear vehicle
has full control of the situation as he is in a position to observe
the vehicle in front of him.
Consequently, no other person was to blame but the victim himself
since he was the one who bumped his motorcycle into the rear of the
Isuzu truck. He had the last clear chance of avoiding the accident xxx

Canlas vs. CA
GR No. 112160
February 28, 2000

Canlas and Private respondent Manosca decided to undertake a

business venture. To pursue the same, Canlas decided to undertake a Special
Power of Attorney in favor of Manosca so that he could mortgage the lands
for a loan. Manosca was able to mortgage the land to Asian Savings Bank
through the use of an impostor who acted as Spouses Canlas. Petitioner
asked for annulment of the deed of real esate mortgage with the prayer of
damages against the negligent act of the respondent Bank.
The Court ruled that respondent Bank should reimburse the petitioner
for being remised in observance of its diligence, particularly in approving a
loan with impostors in the absence of any proof of their identities.
Applying the Doctrine of the Last Clear Chance, the Bank has within its
capacity the last fair chance to prevent the fraudulent act.
xxx In essence, the doctrine of last clear chance is to the efect
that where both parties are negligent but the negligent act of
one is appreciably later in point of time than that of the other,
or where it is impossible to determine whose fault or
negligence brought about the occurrence of the incident, the
one who had the last clear opportunity to avoid the impending
harm but failed to do so, is chargeable with the consequences
arising therefrom xxx
xxx Assuming that Osmundo Canlas was negligent in giving Vicente
Maosca the opportunity to perpetrate the fraud, by entrusting to
latter the owner's copy of the transfer certificates of title of subject
parcels of land, it cannot be denied that the bank had the last
clear chance to prevent the fraud, by the simple expedient of
faithfully complying with the requirements for banks to
ascertain the identity of the persons transacting with them xxx
For not observing the degree of diligence required of banking
institutions, whose business is impressed with public interest, respondent
Asian Savings Bank has to bear the loss sued upon.
Moreover, the Court held the REM as void.
xxx Settled is the rule that a contract of mortgage must be constituted
only by the absolute owner on the property mortgaged; a mortgage,
constituted by an impostor is void. Considering that it was
established indubitably that the contract of mortgage sued upon was
entered into and signed by impostors who misrepresented themselves
as the spouses Osmundo Canlas and Angelina Canlas, the Court is of
the ineluctible conclusion and finding that subject contract of mortgage
is a complete nullity xxx
Consolidated Bank vs. CA
GR No. 138569
September 11, 2003
 LC Diaz, a client of petitioner bank, made a deposit through his
employee. During the transaction, the employee left the passbook in the
possession of the teller while he when to another bank. When employee
returned, the passbook was nowhere to be found. Allegedly, the teller cannot
remember to whom she gave the same. Consequently, Diaz found out that
the passbook was used by another thereby withdrawing an amount of
P300,000. Private respondent now prays for damages for the alleged
negligence of the Bank.
To exonerate itself, Solidbank assails the application of the doctrine of
the last clear chance to which the Court ruled in the negative.
xxx We do not apply the doctrine of last clear chance to the
present case. Solidbank is liable for breach of contract due to
negligence in the performance of its contractual obligation to
L.C. Diaz. This is a case of culpa contractual, where neither the
contributory negligence of the plaintif nor his last clear
chance to avoid the loss, would exonerate the defendant from
liability. Such contributory negligence or last clear chance by the
plaintiff merely serves to reduce the recovery of damages by the
plaintiff but does not exculpate the defendant from his breach of
contract xxx
Solidbanks rules on savings account require that the deposit book
should be carefully guarded by the depositor and kept under lock and key, if
possible. When the passbook is in the possession of Solidbanks tellers during
withdrawals, the law imposes on Solidbank and its tellers an even higher
degree of diligence in safeguarding the passbook.
Likewise, Solidbanks tellers must exercise a high degree of diligence in
insuring that they return the passbook only to the depositor or his authorized
representative. The tellers know, or should know, that the rules on
savings account provide that any person in possession of the
passbook is presumptively its owner. If the tellers give the passbook
to the wrong person, they would be clothing that person
presumptive ownership of the passbook, facilitating unauthorized
withdrawals by that person. For failing to return the passbook to
Calapre, the authorized representative of L.C. Diaz, Solidbank and
Teller No. 6 presumptively failed to observe such high degree of
diligence in safeguarding the passbook, and in insuring its return to
the party authorized to receive the same.
xxx In culpa contractual, once the plaintif proves a breach of
contract, there is a presumption that the defendant was at
fault or negligent. The burden is on the defendant to prove
 that he was not at fault or negligent. In contrast, in culpa
aquiliana the plaintiff has the burden of proving that the defendant was
negligent. In the present case, L.C. Diaz has established that Solidbank
breached its contractual obligation to return the passbook only to the
authorized representative of L.C. Diaz. There is thus a presumption that
Solidbank was at fault and its teller was negligent in not returning the
passbook to Calapre. The burden was on Solidbank to prove that there
was no negligence on its part or its employees xxx
The Court accepts that Diaz is also negligent. In this case, L.C. Diaz
was guilty of contributory negligence in allowing a withdrawal slip signed by
its authorized signatories to fall into the hands of an impostor. Thus, the
liability of Solidbank should be reduced.
In Philippine Bank of Commerce v. Court of Appeals, where the Court
held the depositor guilty of contributory negligence, it allocated the
damages between the depositor and the bank on a 40-60 ratio. The
Court applies this ratio in this case.
 Engada vs. CA
GR No. 140698
June 20, 2003

The petitioner, driver of a pick up made a head on collision with Iran,

the driver of a Tamarraw FX. Allegedly, the pick ups right signal light flashed,
at the same time, it swerved to its left, encroaching upon the lane of the
Tamaraw and headed towards a head-on collision course with it. Iran swerved
to his left but the pick-up also swerved to its right. Thus, the pick-up collided
with the Tamaraw, hitting the latter at its right front passenger side. The
impact caused the head and chassis of the Tamaraw to separate from its
body. The passenger therein also suffered injuries.

In his defense, petitioner avers that although his act of occupying the
Tamaraws lane was the initial act in the chain of events, Irans swerving to
the left after petitioner flashed his right turn signal, constituted a sufficient
intervening event, which proximately caused the eventual injuries and
damages to private complainant.

The Court introduced the emergency rule in defending the act of Iran.

xxx The rationale of this rule is that a person who is confronted

with a sudden emergency might have no time for thought, and
he must make a prompt decision based largely upon impulse or
instinct. Thus, he cannot be held to the same standard of conduct as
one who had an opportunity to reflect, even though it later appears
that he made the wrong decision xxx

xxx 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
xxx

Hence, the existence of this emergency rule barred the application of

the doctrine of the last clear chance.

xxx Instead, what has been shown is the presence of an emergency

and the proper application of the emergency rule. Petitioners act of
 swerving to the Tamaraws lane at a distance of 30 meters from
it and driving the Isuzu pick-up at a fast speed as it
approached the Tamaraw, denied Iran time and opportunity to
ponder the situation at all. There was no clear chance to speak
of xxxx

Moreover, the law requires diligence to be observed by vehicles who

overtakes or drives outside their lane.

It is a settled rule that a driver abandoning his proper lane for the
purpose of overtaking another vehicle in an ordinary situation has the duty
to see to it that the road is clear and he should not proceed if he
cannot do so in safety (The Land Transportation and Traffic Code).