Proximate Cause

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by
its owner defendant Mariano Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same
morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and
turned turtle. Some of the passengers managed to leave the bus the best way they could, others had
to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of
the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans
and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they
could not get out of the bus. There is nothing in the evidence to show whether or not the passengers
already free from the wreck, including the driver and the conductor, made any attempt to pull out or
extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about ten men, one of them
carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost immediately, a fierce fire started,
burning and all but consuming the bus, including the four passengers trapped inside it. It would
appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the
side of the chassis, spreading over and permeating the body of the bus and the ground under and
around it, and that the lighted torch brought by one of the men who answered the call for help set it
on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed
and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600
as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim
in the complaint.
Our new Civil Code amply provides for the responsibility of common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all the circumstances of each
case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his
agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point where one of the front tires
burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of
Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself
and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though
he must have suffered physical injuries, perhaps serious, was still alive, and so damages were
awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory
definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:
 . . . '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.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case under the circumstances
obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the
bus, this for the reason that when the vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it was dark (about
2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural
area where lanterns and flashlights were not available; and what was more natural than that said
rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its passengers and the call for
outside help. What is more, the burning of the bus can also in part be attributed to the negligence of
the carrier, through is driver and its conductor. According to the witness, the driver and the conductor
were on the road walking back and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither
the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier
come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial
court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them,
the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence,
one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in
the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the
bus changed immediately because they were already old, and that as a matter of fact, he had been
telling the driver to change the said tires, but that the driver did not follow his instructions. If this be
true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in front,
with new ones, as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was banking to support the complaint,
either failed or appear or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect
of the said driver was negligent. In the public interest the prosecution of said erring driver should be
pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on
public utility buses. Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

G.R. No. L-29745 June 4, 1973

MERCEDES M. TEAGUE, petitioner,

vs.
ELENA FERNANDEZ, et al., respondent.

Jose W. Diokno for petitioner.

Jose G. Gatchalian for respondents.

MAKALINTAL, J.:

The facts are stated in the decision of the Court of Appeals as follows:

The Realistic Institute, admittedly owned and operated by defendant-appellee

Mercedes M. Teague was a vocational school for hair and beauty culture situated on
the second floor of the Gil-Armi Building, a two-storey, semi-concrete edifice (Exhs.
"C", "C-1" to "C-5" and "4") located at the corner of Quezon Boulevard and Soler
Street, Quiapo, Manila. The said second floor was unpartitioned, had a total area of
about 400 square meters, and although it had only one stairway, of about 1.50
meters in width, it had eight windows, each of which was provided with two fire-
escape ladders (Exh. "4"), and the presence of each of said fire-exits was indicated
on the wall (Exh. "5").

At about four o'clock in the afternoon of October 24, 1955, a fire broke out in a store
for surplus materials located about ten meters away from the institute. Soler Street
lay between that store and the institute. Upon seeing the fire, some of the students in
the Realistic Institute shouted 'Fire! Fire!' and thereafter, a panic ensued. Four
instructresses and six assistant instructress of the Institute were present and they,
 together with the registrar, tried to calm down the students, who numbered about 180
at the time, telling them not to be afraid because the Gil-Armi Building would not get
burned as it is made of concrete, and that the fire was anyway, across the street.
They told the students not to rush out but just to go down the stairway two by two, or
to use the fire-escapes. Mrs. Justitia Prieto, one of the instructresses, took to the
microphone so as to convey to the students the above admonitions more effectively,
and she even slapped three students in order to quiet them down. Miss Frino
Meliton, the registrar, whose desk was near the stairway, stood up and tried with
outstretched arms to stop the students from rushing and pushing their way to the
stairs. The panic, however, could not be subdued and the students, with the
exception of the few who made use of fire-escapes kept on rushing and pushing their
way through the stairs, thereby causing stampede therein.

Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was over, four
students, including Lourdes Fernandez, a sister of plaintiffs-appellants, were found
dead and several others injured on account of the stampede.

xxx xxx xxx

The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on the upper
lip, contused abrasions in different parts of the body, internal hemorrhage and fractures in the
second and third right ribs. The cause of death, according to the autopsy report, was "Shock due to
traumatic fractures of the ribs with perinephric hematoma and lacerations of the conjunctiva of both
eyes."

The deceased's five brothers and sisters filed an action for damages against Mercedes M. Teague
as owner and operator of Realistic Institute. The Court of First Instance of Manila found for the
defendant and dismissed the case. The plaintiffs thereupon appealed to the Court of Appeals, which
by a divided vote of 3 to 2 (a special division of five members having been constituted) rendered a
judgment of reversal and sentenced the defendant to pay damages to the plaintiffs in the sum of
P11,000.00, plus interest at the legal rate from the date the complaint was filed.

The case came up to this Court on a petition for review filed by the defendant below.

The decision of the appellate court declared that the defendant, hereinafter to be referred to as the
petitioner, was negligent and that such negligence was the proximate cause of the death of Lourdes
Fernandez. This finding of negligence is based primarily on the fact that the provision of Section 491
Of the Revised Ordinances of the City of Manila had not been complied with in connection with the
construction and use of the Gil-Armi building where the petitioner's vocational school was housed.
This provision reads as follows:

Sec. 491. Firepro of partitions, exits and stairways. ... All buildings and separate
sections of buildings or buildings otherwise known as accessorias having less than
three stories, having one or more persons domiciled therein either temporarily or
permanently, and all public or quasi-public buildings having less than three stories,
such as hospitals, sanitarium, schools, reformatories, places of human detention,
assembly halls, clubs, restaurants or panciterias, and the like, shall be provided with
at least two unobstructed stairways of not less than one meter and twenty
centimeters in width and an inclination of not less than forty degrees from the
perpendicular, in case of large buildings more than two stairways shall likewise be
provided when required by the chief of the fire department, said stairways shall be
placed as far apart as possible.
The alleged violation of the ordinance above-quoted consisted in the fact that the second storey of
the Gil-Armi building had only one stairway, 1.5 meters wide, instead of two of at least 1.2 meters
each, although at the time of the fire the owner of the building had a second stairway under
construction.

In ruling that such non-compliance with the City Ordinances was an act of negligence and that such
negligence was the proximate cause of the death of Lourdes Fernandez, reliance is based on a
number of authorities in the American jurisdiction, thus: .

The mere fact of violation of a statute is not sufficient basis for an inference that such
violation was the proximate cause of the injury complained. However, if the very
injury has happened which was intended to be prevented by the statute, it has been
held that violation of the statute will be deemed to be proximate cause of the injury.
(65 C.J.S. 1156).

The generally accepted view is that violation of a statutory duty constitutes

negligence, negligence as a matter or law, or, according to the decisions on the
question, negligence per se for the reason that non-observance of what the
legislature has prescribed as a suitable precaution is failure to observe that care
which an ordinarily prudent man would observe, and, when the state regards certain
acts as so liable to injure others as to justify their absolute prohibition, doing the
forbidden act is a breach of duty with respect to those who may be injured thereby;
or, as it has been otherwise expressed, when the standard of care is fixed by law,
failure to conform to such standard is negligence, negligence per se or negligence in
and of itself, in the absence of a legal excuse. According to this view it is immaterial,
where a statute has been violated, whether the act or omission constituting such
violation would have been regarded as negligence in the absence of any statute on
the subject or whether there was, as a matter of fact, any reason to anticipate that
injury would result from such violation. .... (65 C.J.S. pp. 623-628).

But the existence of an ordinance changes the situation. If a driver causes an

accident by exceeding the speed limit, for example, do not inquire whether his
prohibited conduct was unreasonably dangerous. It is enough that it was prohibited.
Violation of an ordinance intended to promote safety is negligence. If by creating the
hazard which the ordinance was intended to avoid it brings about the harm which the
ordinance was intended to prevent, it is a legal cause of the harm. This comes only
to saying that in such circumstances the law has no reason to ignore the causal
relation which obviously exists in fact. The law has excellent reason to recognize it,
since it is the very relation which the makers of the ordinance anticipated. This court
has applied these principles to speed limits and other regulations of the manner of
driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).

... However, the fact that other happenings causing or contributing toward an injury
intervened between the violation of a statute or ordinance and the injury does not
necessarily make the result so remote that no action can be maintained. The test is
to be found not in the number of intervening events or agents, but in their character
and in the natural and probable connection between the wrong done and the
injurious consequence. The general principle is that the violation of a statute or
ordinance is not rendered remote as the cause of an injury by the intervention of
another agency if the occurrence of the accident, in the manner in which it happened,
was the very thing which the statute or ordinance was intended to Prevent. (38 Am
Jur 841).
The petitioner has raised a number of issues. The first is that Section 491 of the Revised Ordinances
of the City of Manila refers to public buildings and hence did not apply to the Gil-Armi building which
was of private ownership. It will be noted from the text of the ordinance, however, that it is not
ownership which determines the character of buildings subject to its requirements, but rather the use
or the purpose for which a particular building is utilized. Thus the same may be privately owned, but
if it is devoted to any one of the purposes mentioned in the ordinance for instance as a school,
which the Realistic Institute precisely was then the building is within the coverage of the
ordinance. Indeed the requirement that such a building should have two (2) separate stairways
instead of only one (1) has no relevance or reasonable relation to the fact of ownership, but does
have such relation to the use or purpose for which the building is devoted.

It is next contended that the obligation to comply with the ordinance devolved upon the owners of the
building and therefore it is they and not the petitioner herein, who is a mere lessee, who should be
liable for the violation. The contention ignores the fact that it was the use of the building for school
purposes which brought the same within the coverage of the ordinance; and it was the petitioner and
not the owners who was responsible for such use.

The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to comply
with the requirement of the ordinance was the proximate cause of the death of Lourdes Fernandez.
The case of Villanueva Vda. de Bataclan, et al. vs. Medina, G. R. No. L-10126, October 22, 1957, is
cited in support of the contention that such failure was not the proximate cause. It is there stated by
this Court:

The proximate legal cause is that acting first and producing the injury, either
immediately or by settling other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately affecting the injury
as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result therefrom.

Having in view the decision just quoted, the petitioner relates the chain of events that resulted in the
death of Lourdes Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring place; (3)
shouts of "Fire!, Fire!"; (4) panic in the Institute; (5) stampede; and (6) injuries and death.

As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all, and
cannot be the basis of liability since there intervened a number of independent causes which
produced the injury complained of. A statement of the doctrine relied upon is found in Manila Electric
Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court, citing Corpus Juris said:

A prior and remote cause cannot be made the basis of an action if such remote
cause did nothing more than furnish the condition or give rise to the occasion by
which the injury was made possible, if there intervened between such prior or remote
cause and the injury a distinct, successive unrelated, and efficient cause of the injury,
even though such injury would not have happened but for such condition or
occasion. If no danger existed in the condition except because of the independent
cause, such condition was not the proximate cause. And if an independent negligent
act or defective condition sets into operation the circumstances which result in injury
because of the prior defective condition, such subsequent act or condition is the
proximate cause. (45 C.J. p. 931.)
According to the petitioner "the events of fire, panic and stampede were independent causes with no
causal connection at all with the violation of the ordinance." The weakness in the argument springs
from a faulty juxtaposition of the events which formed a chain and resulted in the injury. It is true that
the petitioner's non-compliance with the ordinance in question was ahead of and prior to the other
events in point of time, in the sense that it was coetaneous with its occupancy of the building. But the
violation was a continuing one, since the ordinance was a measure of safety designed to prevent a
specific situation which would pose a danger to the occupants of the building. That situation was
undue overcrowding in case it should become necessary to evacuate the building, which, it could be
reasonably foreseen, was bound to happen under emergency conditions if there was only one
stairway available. It is true that in this particular case there would have been no overcrowding in the
single stairway if there had not been a fire in the neighborhood which caused the students to panic
and rush headlong for the stairs in order to go down. But it was precisely such contingencies or
event that the authors of the ordinance had in mind, for under normal conditions one stairway would
be adequate for the occupants of the building. Thus, as stated in 38 American Jurisprudence, page
841: "The general principle is that the violation of a statute or ordinance is not rendered remote as
the cause of an injury by the intervention of another agency if the occurrence of the accident, in the
manner in which it happened, was the very thing which the statute or ordinance was intended to
prevent." To consider the violation of the ordinance as the proximate cause of the injury does not
portray the situation in its true perspective; it would be more accurate to say that the overcrowding at
the stairway was the proximate cause and that it was precisely what the ordinance intended to
prevent by requiring that there be two stairways instead of only one. Under the doctrine of the cases
cited by the respondents, the principle of proximate cause applies to such violation.

A procedural point mentioned by the petitioner is that the complaint did not specifically allege that
the ordinance in question had been violated. The violation, however, as an act of negligence which
gave rise to liability, was sufficiently comprehended within paragraph 7 of the complaint, which
reads: .

Par. 7. That the death of Lourdes Fernandez was due to the gross negligence of the
defendant who failed to exercise due care and diligence for the safety of its students
in not providing the building with adequate fire exits and in not practicing fire drill
exercises to avoid the stampede, aside from the fact that the defendant did not have
a permit to use the building as a school-house.

The decision appealed from is affirmed, with costs.

Zaldivar, Fernando, Teehankee, Makasiar, Antonio and Esguerra, JJ., concur.

G.R. No. L-21512 August 31, 1966

PROSPERO SABIDO and ASER LAGUNDA, petitioners,

vs.
CARLOS CUSTODIO, BELEN MAKABUHAY CUSTODIO and THE HONORABLE COURT OF
APPEALS,respondents.

Sabido, Sabido and Associates for petitioners.

Ernesto S. Tengco for respondents.

CONCEPCION, C.J.:
Prospero Sabido and Aser Lagunda seek the review by certiorari of a decision of the Court of
Appeals, affirming that of the Court of First Instance of Laguna, sentencing the Laguna-Tayabas Bus
Co., Nicasio Mudales, and herein petitioners. Prospero Sabido and Aser Lagunda, to jointly and
severally indemnify Belen Makabuhay Custodio and her son, Agripino Custodio Jr., in the sum of
P6,000 and to pay the costs of the suit.

The facts are set forth in the decision of the Court of Appeals from which we quote:

Upon a careful study and judicious examining of the evidence on record, we are inclined to
concur in the findings made by the trial court. Here is how the Court a quo analyzed the facts
of this case:

"In Barrio Halang, Municipality of Lumban, Province of Laguna, two trucks, one
driven by Nicasio Mudales and belonging to Laguna-Tayabas Bus Company, and the
other driven by Aser Lagunda and owned by Prospero Sabido, going in opposite
directions met each other in a road curve. Agripino Custodia a passenger of LTB
bus, who was hanging on the left side as truck was full of passengers was
sideswiped by the track driven by Aser Lagunda. As a result, Agripino Custodio was
injured and died (Exhibit A).

"It appears clear from the evidence that Agripino Custodio was hanging on the left
side of the LTB bus. Otherwise, were he sitting inside the truck, he could not have
been struck by the six by six truck driven by Aser Lagunda. This fact alone, of
allowing Agripino Custodio to hang on the side of the truck, makes the defendant
Laguna Tayabas Bus Company liable for damages. For certainly its employees, who
are the driver and conductor were negligent. They should not have allowed Agripino
Custodio to ride their truck in that manner.

"To avoid any liability, Aser Lagunda and Prospero Sabido throw all the blame on
Nicasio Mudales. From the testimony, however, of Belen Makabuhay, Agripino
Custodio's widow, we can deduce that Aser Lagunda was equally negligent as
Nicasio Mudales. Belen testified that the 6 x 6 truck was running fast when it met the
LTB Bus. And Aser Lagunda had time and opportunity to avoid the mishap if he had
been sufficiently careful and cautious because the two trucks never collided with
each other. By simply swerving to the right side of the road, the 6 x 6 truck could
have avoided hitting Agripino Custodio. It is incredible that the LTB was running on
the middle of the road when passing a curve. He knows it is dangerous to do so. We
are rather of the belief that both trucks did not keep close to the right side of the road
so they sideswiped each other and thus Agripino Custodio was injured and died. In
other words, both drivers must have drive in their trucks not in the proper lane and
are, therefore, both reckless and negligent.

"We might state by way of additional observations that the sideswiping of the deceased and
his two fellow passengers took place on broad daylight at about 9:30 in the morning of June
9, 1955 when the LTB bus with full load to passengers was negotiating a sharp curve of a
bumpy and sliding downward a slope, whereas the six by six truck was climbing up with no
cargoes or passengers on board but for three helpers, owner Sabido and driver Lagunda
(tsn. 308-309, Mendoza). Under the above-stated condition, there exists strong persuasion
to accept what Belen Makabuhay and Sofia Mesina, LTB passengers, had testified to the
effect that the 6 x 6 cargo truck was running at a fast rate of speed (tsn. 15, 74, 175
Mendoza). From the lips of no less than driver Lagunda himself come the testimonial
admission that the presence of three hanging passengers located at the left side of the bus
 was noted when his vehicle was still at a distance of 5 or 7 meters from the bus, and yet
despite the existence of a shallow canal on the right side of the road which he could pass
over with ease, Lagunda did not care to exercise prudence to avert the accident simply
because to use his own language the canal "is not a passage of trucks."

Based upon these facts, the Court of First Instance of Laguna and the Court of Appeals concluded
that the Laguna-Tayabas Bus Co. hereinafter referred to as the carrier and its driver Nicasio
Mudales (none of whom has appealed), had violated the contract of carriage with Agripino Custodio,
whereas petitioners Sabido and Lagunda were guilty of a quasi delict, by reason of which all of them
were held solidarity liable in the manner above indicated.

Petitioners now maintain: (1) that the death of Agripino Custodio was due exclusively to the
negligence of the carrier and its driver; (2) that petitioners were not guilty of negligence in connection
with the matter under consideration; (3) that petitioners cannot be held solidarily liable with the
carrier and its driver; and (4) that the complaint against petitioners herein should be dismissed.

With respect to the first two (2) points, which are interrelated, it is urged that the carrier and its driver
were clearly guilty of negligence for having allowed Agripino Custodio to ride on the running board of
the bus, in violation of Section 42 of Act No. 3992, and that this negligence was the proximate cause
of Agripino's death. It should be noted, however, that the lower court had, likewise, found the
petitioners guilty of contributory negligence, which was as much a proximate cause of the accident
as the carrier's negligence, for petitioners' truck was running at a considerable speed, despite the
fact that it was negotiating a sharp curve, and, instead of being close to its right side of the road, said
truck was driven on its middle portion and so near the passenger bus coming from the opposite
direction as to sideswipe a passenger riding on its running board. 1wph1.t

The views of the Court of Appeals on the speed of the truck and its location at the time of the
accident are in the nature of findings of fact, which we cannot disturb in a petition for review
by certiorari, such as the one at bar. At any rate, the correctness of said findings is borne out by the
very testimony of petitioner Lagunda to the effect that he saw the passengers riding on the running
board of the bus while the same was still five (5) or seven (7) meters away from the truck driven by
him. Indeed, the distance between the two (2) vehicles was such that he could have avoided
sideswiping said passengers if his truck were not running at a great speed.

Although the negligence of the carrier and its driver is independent, in its execution, of the
negligence of the truck driver and its owner, both acts of negligence are the proximate cause of the
death of Agripino Custodio. In fact, the negligence of the first two (2) would not have produced this
result without the negligence of petitioners' herein. What is more, petitioners' negligence was
the last, in point of time, for Custodio was on the running board of the carrier's bus
sometime before petitioners' truck came from the opposite direction, so that, in this sense,
petitioners' truck had the last clear chance.

Petitioners contend that they should not be held solidarily liable with the carrier and its driver,
because the latter's liability arises from a breach of contract, whereas that of the former springs from
a quasi delict. The rule is, however, that

According to the great weight of authority, where the concurrent or successive negligent acts
or omission of two or more persons, although acting independently of each other, are, in
combination, the direct and proximate cause of a single injury to a third person, and it is
impossible to determine in what proportion each contributed to the injury, either is
responsible for the whole injury, even though his act alone might not have caused the entire
 injury, or the same damage might have resulted from the acts of the other tort-feasor ... . (38
Am. Jur. 946, 947.)

Wherefore, the decision appealed from is hereby affirmed, with costs against the petitioners herein.
It is so ordered.

ATTRACTIVE NUISANCE

G.R. No. L-3422 June 13, 1952

HIDALGO ENTERPRISES, INC., petitioner,

vs.
GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents.

Quisumbing, Sycip, Quisumbing and Salazar for petitioner.

Antonio M. Moncado for respondents.

BENGZON, J.:

This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises,
Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son
Mario.

It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the
City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep,
for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks
themselves were not provided with any kind of fence or top covers. The edges of the tanks were
barely a foot high from the surface of the ground. Through the wide gate entrance, which is
continually open, motor vehicles hauling ice and persons buying said commodity passed, and any
one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At
about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing
with and in company of other boys of his age entered the factory premises through the gate, to take
a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be
fished out later, already a cadaver, having been died of "asphyxia secondary to drowning."

The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner
maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to
avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of
American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8.

The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to attract children in play, and who fails to
exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a
child of tender years who is injured thereby, even if the child is technically a trespasser in the
premises. (See 65 C.J.S., p. 455.)

The principle reason for the doctrine is that the condition or appliance in question although its danger
is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to
approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C.J.S.,
p. 458).

Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little
children in play? In other words is the body of water an attractive nuisance?

The great majority of American decisions say no.

The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as
well as natural, in the absence of some unusual condition or artificial feature other than the
mere water and its location.

There are numerous cases in which the attractive nuisance doctrine has not been held not to
be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches,
culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of
California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana,
Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)

In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris
Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949.

The reason why a swimming pool or pond or reservoir of water is not considered an attractive
nuisance was lucidly explained by the Indiana Appellate Court as follows:

Nature has created streams, lakes and pools which attract children. Lurking in their waters is
always the danger of drowning. Against this danger children are early instructed so that they
are sufficiently presumed to know the danger; and if the owner of private property creates an
artificial pool on his own property, merely duplicating the work of nature without adding any
new danger, . . . (he) is not liable because of having created an "attractive nuisance."
Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.

Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the
petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by
petitioner that the parents of the boy were guilty of contributory negligence precluding recovery,
because they left for Manila on that unlucky day leaving their son under the care of no responsible
individual needs no further discussion.

DAMAGE WITHOUT INJURY

G.R. No. 119107 March 18, 2005

JOSE V. LAGON, Petitioner,

vs.
HONORABLE COURT OF APPEALS and MENANDRO V. LAPUZ, respondents.

DECISION

CORONA, J.:

On June 23, 1982, petitioner Jose Lagon purchased from the estate of Bai Tonina Sepi, through an
intestate court,1two parcels of land located at Tacurong, Sultan Kudarat. A few months after the sale,
private respondent Menandro Lapuz filed a complaint for torts and damages against petitioner
before the Regional Trial Court (RTC) of Sultan Kudarat.

In the complaint, private respondent, as then plaintiff, claimed that he entered into a contract of lease
with the late Bai Tonina Sepi Mengelen Guiabar over three parcels of land (the "property") in Sultan
Kudarat, Maguindanao beginning 1964. One of the provisions agreed upon was for private
respondent to put up commercial buildings which would, in turn, be leased to new tenants. The
rentals to be paid by those tenants would answer for the rent private respondent was obligated to
pay Bai Tonina Sepi for the lease of the land. In 1974, the lease contract ended but since the
construction of the commercial buildings had yet to be completed, the lease contract was allegedly
renewed.

When Bai Tonina Sepi died, private respondent started remitting his rent to the court-appointed
administrator of her estate. But when the administrator advised him to stop collecting rentals from
the tenants of the buildings he constructed, he discovered that petitioner, representing himself as the
new owner of the property, had been collecting rentals from the tenants. He thus filed a complaint
against the latter, accusing petitioner of inducing the heirs of Bai Tonina Sepi to sell the property to
him, thereby violating his leasehold rights over it.

In his answer to the complaint, petitioner denied that he induced the heirs of Bai Tonina to sell the
property to him, contending that the heirs were in dire need of money to pay off the obligations of the
deceased. He also denied interfering with private respondent's leasehold rights as there was no
lease contract covering the property when he purchased it; that his personal investigation and
inquiry revealed no claims or encumbrances on the subject lots.

Petitioner claimed that before he bought the property, he went to Atty. Benjamin Fajardo, the lawyer
who allegedly notarized the lease contract between private respondent and Bai Tonina Sepi, to
verify if the parties indeed renewed the lease contract after it expired in 1974. Petitioner averred that
Atty. Fajardo showed him four copies of the lease renewal but these were all unsigned. To refute the
existence of a lease contract, petitioner presented in court a certification from the Office of the Clerk
of Court confirming that no record of any lease contract notarized by Atty. Fajardo had been entered
into their files. Petitioner added that he only learned of the alleged lease contract when he was
informed that private respondent was collecting rent from the tenants of the building.

Finding the complaint for tortuous interference to be unwarranted, petitioner filed his counterclaim
and prayed for the payment of actual and moral damages.

On July 29, 1986, the court a quo found for private respondent (plaintiff below):

ACCORDINGLY, judgment is hereby rendered in favor of the plaintiff:

1. Declaring the "Contract of Lease" executed by Bai Tonina Sepi Mangelen Guiabar in favor
of the plaintiff on November 6, 1974 (Exh. "A" and "A-1") over Lot No. 6395, Pls-73. Lot No
6396. Pls.-73. Lot No. 6399. 3ls-73, and Lot no.9777-A. CSD-11-000076-D (Lot No. 3-A.
40124), all situated along Ledesma St., Tacurong, Sultan Kudarat, which document was
notarized by Atty. Benjamin S. Fajardo, Sr. and entered into his notarial register as Doc. No.
619. Page No. 24. Book No. II. Series of 1974, to be authentic and genuine and as such
valid and binding for a period of ten (10) years specified thereon from November 1, 1974 up
to October 31, 1984;
2. Declaring the plaintiff as the lawful owner of the commercial buildings found on the
aforesaid lots and he is entitled to their possession and the collection (of rentals) of the said
commercial buildings within the period covered by this "Contract of Lease" in his favor;

3. Ordering the defendant to pay to the plaintiff the following:

a) Rentals of the commercial buildings on the lots covered by the "Contract of Lease"
in favor of the plaintiff for the period from October 1, 1978 up to October 31, 1984,
including accrued interests in the total amount of Five Hundred Six Thousand Eight
Hundred Five Pesos and Fifty Six Centavos (P506, 850.56), the same to continue to
bear interest at the legal rate of 12% per annum until the whole amount is fully paid
by the defendant to the plaintiff;

b) Moral damages in the amount of One Million Sixty Two Thousand Five Hundred
Pesos (P1,062,500.00);

c) Actual or compensatory damages in the amount of Three Hundred Twelve

Thousand Five Hundred Pesos (P312, 500.00);

d) Exemplary or corrective damages in the amount of One Hundred Eighty Thousand

Five Hundred Pesos (P187,500.00)

e) Temperate or moderate damages in the amount of Sixty Two Thousand Five

Hundred Pesos (P62,500.00);

f) Nominal damages in the amount of Sixty Two Thousand Five Hundred Pesos
(P62,500.00);

g) Attorney's fees in the amount of One Hundred Twenty Five Thousand Pesos
(P125,000.00);

h) Expenses of litigation in the amount of Sixty Two Thousand Five Hundred Pesos
(P62,500.00);

i) Interest on the moral damages, actual or compensatory damages temperate or

moderate damages, nominal damages, attorney's fees and expenses of litigation in
the amounts as specified hereinabove from May 24, 1982 up to June 27, 1986, in the
total amount of Nine Hundred Thousand Pesos (P900,000.00); all of which will
continue to bear interests at a legal rate of 12% per annum until the whole amounts
are fully paid by the defendants to the plaintiffs;

4. For failure of the defendant to deposit with this Court all the rentals he had collected from
the thirteen (13) tenants or occupants of the commercial buildings in question, the plaintiff is
hereby restored to the possession of his commercial buildings for a period of seventy-three
(73) months which is the equivalent of the total period for which he was prevented from
collecting the rentals from the tenants or occupants of his commercial buildings from October
1, 1978 up to October 31, 1984, and for this purpose a Writ of Preliminary Injunction is
hereby issued, but the plaintiff is likewise ordered to pay to the defendant the monthly rental
of Seven Hundred Pesos (P700.00) every end of the month for the entire period of seventy
three (73) months. This portion of the judgment should be considered as a mere alternative
 should the defendant fail to pay the amount of Five Hundred Five Pesos and Fifty Six
Centavos (P506,805.56) hereinabove specified;

5. Dismissing the counterclaim interposed by the defendant for lack of merit;

6. With costs against the defendant.2

Petitioner appealed the judgment to the Court of Appeals.3 In a decision dated January 31,
1995,4 the appellate court modified the assailed judgment of the trial court as follows:

a) The award for moral damages, compensatory damages, exemplary damages, temperate
or moderate damages, and nominal damages as well as expenses of litigation in the amount
of P62,500.00 and interests under paragraph 3-a(a), (b), (c), (d), (e), (f), (g), (h), and (i) are
deleted;

b) The award for attorney's fees is reduced to P30,000.00;

c) Paragraphs 1,2,5 and 6 are AFFIRMED;

d) Additionally, the defendant is hereby ordered to pay to the plaintiff by way of actual
damages the sum of P178,425.00 representing the amount of rentals he collected from the
period of October 1978 to August 1983, and minus the amount of P42,700.00 representing
rentals due the defendant computed at P700.00 per month for the period from August 1978
to August 1983, with interest thereon at the rate until the same is fully paid;

e) Paragraph 4 is deleted.5

Before the appellate court, petitioner disclaimed knowledge of any lease contract between the late
Bai Tonina Sepi and private respondent. On the other hand, private respondent insisted that it was
impossible for petitioner not to know about the contract since the latter was aware that he was
collecting rentals from the tenants of the building. While the appellate court disbelieved the
contentions of both parties, it nevertheless held that, for petitioner to become liable for damages, he
must have known of the lease contract and must have also acted with malice or bad faith when he
bought the subject parcels of land.

Via this petition for review, petitioner cites the following reasons why the Court should rule in his
favor:

1. The Honorable Court of Appeals seriously erred in holding that petitioner is liable for
interference of contractual relation under Article 1314 of the New Civil Code;

2. The Honorable Court of Appeals erred in not holding that private respondent is precluded
from recovering, if at all, because of laches;

3. The Honorable Court of Appeals erred in holding petitioner liable for actual damages and
attorney's fees, and;

4. The Honorable Court of Appeals erred in dismissing petitioner's counterclaims.6

Article 1314 of the Civil Code provides that any third person who induces another to violate his
contract shall be liable for damages to the other contracting party. The tort recognized in that
provision is known as interference with contractual relations.7 The interference is penalized because
it violates the property rights of a party in a contract to reap the benefits that should result therefrom.8

The core issue here is whether the purchase by petitioner of the subject property, during the
supposed existence of private respondent's lease contract with the late Bai Tonina Sepi, constituted
tortuous interference for which petitioner should be held liable for damages.

The Court, in the case of So Ping Bun v. Court of Appeals,9 laid down the elements of tortuous
interference with contractual relations: (a) existence of a valid contract; (b) knowledge on the part of
the third person of the existence of the contract and (c) interference of the third person without legal
justification or excuse. In that case, petitioner So Ping Bun occupied the premises which the
corporation of his grandfather was leasing from private respondent, without the knowledge and
permission of the corporation. The corporation, prevented from using the premises for its business,
sued So Ping Bun for tortuous interference.

As regards the first element, the existence of a valid contract must be duly established. To prove
this, private respondent presented in court a notarized copy of the purported lease renewal.10 While
the contract appeared as duly notarized, the notarization thereof, however, only proved its due
execution and delivery but not the veracity of its contents. Nonetheless, after undergoing the rigid
scrutiny of petitioner's counsel and after the trial court declared it to be valid and subsisting, the
notarized copy of the lease contract presented in court appeared to be incontestable proof that
private respondent and the late Bai Tonina Sepi actually renewed their lease contract. Settled is the
rule that until overcome by clear, strong and convincing evidence, a notarized document continues
to be prima facie evidence of the facts that gave rise to its execution and delivery.11

The second element, on the other hand, requires that there be knowledge on the part of the
interferer that the contract exists. Knowledge of the subsistence of the contract is an essential
element to state a cause of action for tortuous interference.12 A defendant in such a case cannot be
made liable for interfering with a contract he is unaware of.13 While it is not necessary to prove actual
knowledge, he must nonetheless be aware of the facts which, if followed by a reasonable inquiry, will
lead to a complete disclosure of the contractual relations and rights of the parties in the contract.14

In this case, petitioner claims that he had no knowledge of the lease contract. His sellers (the heirs
of Bai Tonina Sepi) likewise allegedly did not inform him of any existing lease contract.

After a careful perusal of the records, we find the contention of petitioner meritorious. He conducted
his own personal investigation and inquiry, and unearthed no suspicious circumstance that would
have made a cautious man probe deeper and watch out for any conflicting claim over the property.
An examination of the entire property's title bore no indication of the leasehold interest of private
respondent. Even the registry of property had no record of the same.15

Assuming ex gratia argumenti that petitioner knew of the contract, such knowledge alone was not
sufficient to make him liable for tortuous interference. Which brings us to the third element.
According to our ruling in So Ping Bun, petitioner may be held liable only when there was no legal
justification or excuse for his action16 or when his conduct was stirred by a wrongful motive. To
sustain a case for tortuous interference, the defendant must have acted with malice17 or must have
been driven by purely impious reasons to injure the plaintiff. In other words, his act of interference
cannot be justified.18

Furthermore, the records do not support the allegation of private respondent that petitioner induced
the heirs of Bai Tonina Sepi to sell the property to him. The word "induce" refers to situations where
a person causes another to choose one course of conduct by persuasion or intimidation.19 The
records show that the decision of the heirs of the late Bai Tonina Sepi to sell the property was
completely of their own volition and that petitioner did absolutely nothing to influence their judgment.
Private respondent himself did not proffer any evidence to support his claim. In short, even assuming
that private respondent was able to prove the renewal of his lease contract with Bai Tonina Sepi, the
fact was that he was unable to prove malice or bad faith on the part of petitioner in purchasing the
property. Therefore, the claim of tortuous interference was never established.

In So Ping Bun, the Court discussed whether interference can be justified at all if the interferer acts
for the sole purpose of furthering a personal financial interest, but without malice or bad faith. As the
Court explained it:

x x x, as a general rule, justification for interfering with the business relations of another
exists where the actor's motive is to benefit himself. Such justification does not exist where
the actor's motive is to cause harm to the other. Added to this, some authorities believe that
it is not necessary that the interferer's interest outweigh that of the party whose rights are
invaded, and that an individual acts under an economic interest that is substantial, not
merely de minimis, such that wrongful and malicious motives are negatived, for he acts in
self-protection. Moreover, justification for protecting one's financial position should not be
made to depend on a comparison of his economic interest in the subject matter with that of
the others. It is sufficient if the impetus of his conduct lies in a proper business interest rather
than in wrongful motives.20

The foregoing disquisition applies squarely to the case at bar. In our view, petitioner's purchase of
the subject property was merely an advancement of his financial or economic interests, absent any
proof that he was enthused by improper motives. In the very early case of Gilchrist v. Cuddy,21 the
Court declared that a person is not a malicious interferer if his conduct is impelled by a proper
business interest. In other words, a financial or profit motivation will not necessarily make a person
an officious interferer liable for damages as long as there is no malice or bad faith involved.

In sum, we rule that, inasmuch as not all three elements to hold petitioner liable for tortuous
interference are present, petitioner cannot be made to answer for private respondent's losses.

This case is one of damnun absque injuria or damage without injury. "Injury" is the legal invasion of a
legal right while "damage" is the hurt, loss or harm which results from the injury.22 In BPI Express
Card Corporation v. Court of Appeals,,23 the Court turned down the claim for damages of a
cardholder whose credit card had been cancelled by petitioner corporation after several defaults in
payment. We held there that there can be damage without injury where the loss or harm is not the
result of a violation of a legal duty. In that instance, the consequences must be borne by the injured
person alone since the law affords no remedy for damages resulting from an act which does not
amount to legal injury or wrong.24 Indeed, lack of malice in the conduct complained of precludes
recovery of damages.25

With respect to the attorney's fees awarded by the appellate court to private respondent, we rule that
it cannot be recovered under the circumstances. According to Article 2208 of the Civil Code,
attorney's fees may be awarded only when it has been stipulated upon or under the instances
provided therein.26 Likewise, being in the concept of actual damages, the award for attorney's fees
must have clear, factual and legal bases27 which, in this case, do not exist.

Regarding the dismissal of petitioner's counterclaim for actual and moral damages, the appellate
court affirmed the assailed order of the trial court because it found no basis to grant the amount of
damages prayed for by petitioner. We find no reason to reverse the trial court and the Court of
Appeals. Actual damages are those awarded in satisfaction of, or in recompense for, loss or injury
sustained. To be recoverable, they must not only be capable of proof but must actually be proved
with a reasonable degree of certainty.28 Petitioner was unable to prove that he suffered loss or injury,
hence, his claim for actual damages must fail. Moreover, petitioner's prayer for moral damages was
not warranted as moral damages should result from the wrongful act of a person. The worries and
anxieties suffered by a party hailed to court litigation are not compensable.29

With the foregoing discussion, we no longer deem it necessary to delve into the issue of laches.

WHEREFORE, premises considered, the petition is hereby GRANTED. The assailed decision of the
Court of Appeals is hereby REVERSED and SET ASIDE.

G.R. No. 116100 February 9, 1996

SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and MARIA CRISTINA
SANTOS,petitioners,
vs.
COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA and REGIONAL TRIAL COURT OF
PASIG, METRO MANILA, BRANCH 181, respondents.

DECISION

REGALADO, J.:

This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-G.R.
CV No. 29115, promulgated on November 10, 1993, which affirmed with modification the decision of
the trial court, as well as its resolution dated July 8, 1994 denying petitioner's motion for
reconsideration.1

On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was filed by
Pacifico Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito Santos and
Maria Cristina C. Santos before the Regional Trial Court of Pasig and assigned to Branch 22
thereof.2

The generative facts of the case, as synthesized by the trial court and adopted by the Court of
Appeals, are as follows:

Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during the
pendency of this case and was substituted by Ofelia Mabasa, his surviving spouse [and
children].

The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at
Interior P. Burgos St., Palingon, Tipas, Tagig, Metro Manila. The plaintiff was able to acquire
said property through a contract of sale with spouses Mamerto Rayos and Teodora Quintero
as vendors last September 1981. Said property may be described to be surrounded by other
immovables pertaining to defendants herein. Taking P. Burgos Street as the point of
reference, on the left side, going to plaintiff's property, the row of houses will be as follows:
That of defendants Cristino and Brigido Custodio, then that of Lito and Maria Cristina Santos
and then that of Ofelia Mabasa. On the right side (is) that of defendant Rosalina Morato and
then a Septic Tank (Exhibit "D"). As an access to P. Burgos Street from plaintiff's property,
 there are two possible passageways. The first passageway is approximately one meter wide
and is about 20 meters distan(t) from Mabasa's residence to P. Burgos Street. Such path is
passing in between the previously mentioned row of houses. The second passageway is
about 3 meters in width and length from plaintiff Mabasa's residence to P. Burgos Street; it is
about 26 meters. In passing thru said passageway, a less than a meter wide path through
the septic tank and with 5-6 meters in length, has to be traversed.

When said property was purchased by Mabasa, there were tenants occupying the remises
and who were acknowledged by plaintiff Mabasa as tenants. However, sometime in
February, 1982, one of said tenants vacated the apartment and when plaintiff Mabasa went
to see the premises, he saw that there had been built an adobe fence in the first passageway
making it narrower in width. Said adobe fence was first constructed by defendants Santoses
along their property which is also along the first passageway. Defendant Morato constructed
her adobe fence and even extended said fence in such a way that the entire passageway
was enclosed. (Exhibit "1-Santoses and Custodios, Exh. "D" for plaintiff, Exhs. "1-C", "1-D"
and "1-E") And it was then that the remaining tenants of said apartment vacated the area.
Defendant Ma. Cristina Santos testified that she constructed said fence because there was
an incident when her daughter was dragged by a bicycle pedalled by a son of one of the
tenants in said apartment along the first passageway. She also mentioned some other
inconveniences of having (at) the front of her house a pathway such as when some of the
tenants were drunk and would bang their doors and windows. Some of their footwear were
even lost. . . .3 (Emphasis in original text; corrections in parentheses supplied)

On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:

Accordingly, judgment is hereby rendered as follows:

1) Ordering defendants Custodios and Santoses to give plaintiff permanent access ingress
and egress, to the public street;

2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight
Thousand Pesos (P8,000) as indemnity for the permanent use of the passageway.

The parties to shoulder their respective litigation expenses.4

Not satisfied therewith, therein plaintiff represented by his heirs, herein private respondents, went to
the Court of Appeals raising the sole issue of whether or not the lower court erred in not awarding
damages in their favor. On November 10, 1993, as earlier stated, the Court of Appeals rendered its
decision affirming the judgment of the trial court with modification, the decretal portion of which
disposes as follows:

WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH
MODIFICATION only insofar as the herein grant of damages to plaintiffs-appellants. The
Court hereby orders defendants-appellees to pay plaintiffs-appellants the sum of Sixty Five
Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand (P30,000) Pesos as Moral
Damages, and Ten Thousand (P10,000) Pesos as Exemplary Damages. The rest of the
appealed decision is affirmed to all respects.5

On July 8, 1994, the Court of Appeals denied petitioner's motion for reconsideration.6 Petitioners then
took the present recourse to us, raising two issues, namely, whether or not the grant of right of way
to herein private respondents is proper, and whether or not the award of damages is in order.
With respect to the first issue, herein petitioners are already barred from raising the same.
Petitioners did not appeal from the decision of the court a quo granting private respondents the right
of way, hence they are presumed to be satisfied with the adjudication therein. With the finality of the
judgment of the trial court as to petitioners, the issue of propriety of the grant of right of way has
already been laid to rest.

For failure to appeal the decision of the trial court to the Court of Appeals, petitioners cannot obtain
any affirmative relief other than those granted in the decision of the trial court. That decision of the
court below has become final as against them and can no longer be reviewed, much less reversed,
by this Court. The rule in this jurisdiction is that whenever an appeal is taken in a civil case, an
appellee who has not himself appealed may not obtain from the appellate court any affirmative relief
other than what was granted in the decision of the lower court. The appellee can only advance any
argument that he may deem necessary to defeat the appellant's claim or to uphold the decision that
is being disputed, and he can assign errors in his brief if such is required to strengthen the views
expressed by the court a quo. These assigned errors, in turn, may be considered by the appellate
court solely to maintain the appealed decision on other grounds, but not for the purpose of reversing
or modifying the judgment in the appellee's favor and giving him other affirmative reliefs.7

However, with respect to the second issue, we agree with petitioners that the Court of Appeals erred
in awarding damages in favor of private respondents. The award of damages has no substantial
legal basis. A reading of the decision of the Court of Appeals will show that the award of damages
was based solely on the fact that the original plaintiff, Pacifico Mabasa, incurred losses in the form of
unrealized rentals when the tenants vacated the leased premises by reason of the closure of the
passageway.

However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover
damages. To warrant the recovery of damages, there must be both a right of action for a legal wrong
inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without damage, or
damage without wrong, does not constitute a cause of action, since damages are merely part of the
remedy allowed for the injury caused by a breach or wrong.8

There is a material distinction between damages and injury. Injury is the illegal invasion of a legal
right; damage is the loss, hurt, or harm which results from the injury; and damages are the
recompense or compensation awarded for the damage suffered. Thus, there can be damage without
injury in those instances in which the loss or harm was not the result of a violation of a legal duty.
These situations are often called damnum absque injuria.9

In order that a plaintiff may maintain an action for the injuries of which he complains, he must
establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a
concurrence of injury to the plaintiff and legal responsibility by the person causing it.10 The underlying
basis for the award of tort damages is the premise that an individual was injured in contemplation of
law. Thus, there must first be the breach of some duty and the imposition of liability for that breach
before damages may be awarded; it is not sufficient to state that there should be tort liability merely
because the plaintiff suffered some pain and suffering.11

Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or
loss to another but which violate no legal duty to such other person, and consequently create no
cause of action in his favor. In such cases, the consequences must be borne by the injured person
alone. The law affords no remedy for damages resulting from an act which does not amount to a
legal injury or wrong.12
In other words, in order that the law will give redress for an act causing damage, that act must be not
only hurtful, but wrongful. There must be damnum et injuria.13 If, as may happen in many cases, a
person sustains actual damage, that is, harm or loss to his person or property, without sustaining
any legal injury, that is, an act or omission which the law does not deem an injury, the damage is
regarded as damnum absque injuria.14

In the case at bar, although there was damage, there was no legal injury. Contrary to the claim of
private respondents, petitioners could not be said to have violated the principle of abuse of right. In
order that the principle of abuse of right provided in Article 21 of the Civil Code can be applied, it is
essential that the following requisites concur: (1) The defendant should have acted in a manner that
is contrary to morals, good customs or public policy; (2) The acts should be willful; and (3) There
was damage or injury to the plaintiff.15

The act of petitioners in constructing a fence within their lot is a valid exercise of their right as
owners, hence not contrary to morals, good customs or public policy. The law recognizes in the
owner the right to enjoy and dispose of a thing, without other limitations than those established by
law.16 It is within the right of petitioners, as owners, to enclose and fence their property. Article 430 of
the Civil Code provides that "(e)very owner may enclose or fence his land or tenements by means of
walls, ditches, live or dead hedges, or by any other means without detriment to servitudes
constituted thereon."

At the time of the construction of the fence, the lot was not subject to any servitudes. There was no
easement of way existing in favor of private respondents, either by law or by contract. The fact that
private respondents had no existing right over the said passageway is confirmed by the very
decision of the trial court granting a compulsory right of way in their favor after payment of just
compensation. It was only that decision which gave private respondents the right to use the said
passageway after payment of the compensation and imposed a corresponding duty on petitioners
not to interfere in the exercise of said right.

Hence, prior to said decision, petitioners had an absolute right over their property and their act of
fencing and enclosing the same was an act which they may lawfully perform in the employment and
exercise of said right. To repeat, whatever injury or damage may have been sustained by private
respondents by reason of the rightful use of the said land by petitioners is damnum absque injuria.17

A person has a right to the natural use and enjoyment of his own property, according to his pleasure,
for all the purposes to which such property is usually applied. As a general rule, therefore, there is
no cause of action for acts done by one person upon his own property in a lawful and proper
manner, although such acts incidentally cause damage or an unavoidable loss to another, as such
damage or loss is damnum absque injuria. 18 When the owner of property makes use thereof in the
general and ordinary manner in which the property is used, such as fencing or enclosing the same
as in this case, nobody can complain of having been injured, because the incovenience arising from
said use can be considered as a mere consequence of community life. 19

The proper exercise of a lawful right cannot constitute a legal wrong for which an action will
lie, 20 although the act may result in damage to another, for no legal right has been invaded. 21 One
may use any lawful means to accomplish a lawful purpose and though the means adopted may
cause damage to another, no cause of action arises in the latter's favor. An injury or damage
occasioned thereby is damnum absque injuria. The courts can give no redress for hardship to an
individual resulting from action reasonably calculated to achieve a lawful means. 22
WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of
respondent Court of Appeals is hereby REVERSED and SET ASIDE and the judgment of the trial
court is correspondingly REINSTATED.

DOCTRINE OF ASUMPTION OF RISK

G.R. No. 92087 May 8, 1992

SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children, namely:
ALBERTO & ROBERTO, all surnamed FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO,
ROSALIA BERTULANO, in her behalf and as the legal guardian of her minor children, namely:
EDUARDO, ROLANDO, DANIEL, AND JOCELYN, all surnamed BERTULANO, PRIMITIVA
FAJARDO in her behalf and as legal guardian of her minor children, namely: GILBERT, GLEN,
JOCELYN AND JOSELITO, all surnamed FAJARDO, and EMETERIA LIAGOSO, in her behalf
and as guardian ad litem, of her minor grandchildren, namely: NOEL, WILLIAM, GENEVIEVE
and GERRY, all surnamed LIAGOSO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF DAVAO, respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari praying that the amended decision of the Court of Appeals
dated January 11, 1990 in CA-G.R. No. C.V. 04846, entitled "Sofia Fernando, etc., et al. v. The City
of Davao," be reversed and that its original decision dated January 31, 1986 be reinstated subject to
the modification sought by the petitioners in their motion for partial reconsideration dated March 6,
1986.

The antecedent facts are briefly narrated by the trial court, as follows:

From the evidence presented we see the following facts: On November 7, 1975,
Bibiano Morta, market master of the Agdao Public Market filed a requisition request
with the Chief of Property of the City Treasurer's Office for the re-emptying of the
septic tank in Agdao. An invitation to bid was issued to Aurelio Bertulano, Lito
Catarsa, Feliciano Bascon, Federico Bolo and Antonio Suer, Jr. Bascon won the
bid. On November 26, 1975 Bascon was notified and he signed the purchase order.
However, before such date, specifically on November 22, 1975, bidder Bertulano
with four other companions namely Joselito Garcia, William Liagoso, Alberto
Fernando and Jose Fajardo, Jr. were found dead inside the septic tank. The bodies
were removed by a fireman. One body, that of Joselito Garcia, was taken out by his
uncle, Danilo Garcia and taken to the Regional Hospital but he expired there. The
City Engineer's office investigated the case and learned that the five victims entered
the septic tank without clearance from it nor with the knowledge and consent of the
market master. In fact, the septic tank was found to be almost empty and the victims
were presumed to be the ones who did the re-emptying. Dr. Juan Abear of the City
Health Office autopsied the bodies and in his reports, put the cause of death of all
five victims as "asphyxia" caused by the diminution of oxygen supply in the body
working below normal conditions. The lungs of the five victims burst, swelled in
hemmorrhagic areas and this was due to their intake of toxic gas, which, in this case,
was sulfide gas produced from the waste matter inside the septic tank. (p. 177,
Records)
On August 28, 1984, the trial court rendered a decision, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, this case is hereby DISMISSED without

pronouncement as to costs.

SO ORDERED. (Records, p. 181)

From the said decision, the petitioners appealed to the then Intermediate Appellate Court (now Court
of Appeals). On January 3, 1986, the appellate court issued a decision, the dispositive portion of
which reads:

WHEREFORE, in view of the facts fully established and in the liberal interpretation of
what the Constitution and the law intended to protect the plight of the poor and the
needy, the ignorant and the
indigent more entitled to social justice for having, in the unforgettable words of
Magsaysay, "less in life," We hereby reverse and set aside the appealed judgment
and render another one:

1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando, Sofia Fernando
and her minor children the following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

2. Ordering the defendant to pay to the plaintiffs David Garcia and Anita Garcia the
following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano (sic) and her minor
children the following sums of money

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and her minor
children the following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

5. Ordering the defendant to pay to the plaintiffs Norma Liagoso, Nicolas Liagoso
and Emeteria Liagoso and her minor grandchildren the following sums of money:

a) Compensatory damages for his death P30,000.00

 b) Moral damages P20,000.00

The death compensation is fixed at P30,000.00 in accordance with the rulings of the
Supreme Court starting with People vs. De la Fuente, Nos. L-63251-52, December
29, 1983, 126 SCRA 518 reiterated in the recent case of People vs. Nepomuceno,
No. L-41412, May 27, 1985. Attorney's fees in the amount of P10,000.00 for the
handling of the case for the 5 victims is also awarded.

No pronouncement as to costs.

SO ORDERED. (Rollo, pp. 33-34)

Both parties filed their separate motions for reconsideration. On January 11, 1990, the Court of
Appeals rendered an Amended Decision, the dispositive portion of which reads:

WHEREFORE, finding merit in the motion for reconsideration of the defendant-

appellee Davao City, the same is hereby GRANTED. The decision of this Court
dated January 31, 1986 is reversed and set aside and another one is hereby
rendered dismissing the case. No pronouncement as to costs.

SO ORDERED. (Rollo, p. 25)

Hence, this petition raising the following issues for resolution:

1. Is the respondent Davao City guilty of negligence in the case at bar?

2. If so, is such negligence the immediate and proximate cause of deaths of the
victims hereof? (p. 72, Rollo)

Negligence has been defined as the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury (Corliss v. Manila Railroad Company, L-21291, March 28,
1969, 27 SCRA 674, 680). Under the law, a person who by his omission causes damage to another,
there being negligence, is obliged to pay for the damage done (Article 2176, New Civil Code). As to
what would constitute a negligent act in a given situation, the case of Picart v. Smith (37 Phil. 809,
813) provides Us the answer, to wit:

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 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 pater familias 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 speculation 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
the ignoring of the suggestion born of this provision, 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 warrant his foregoing the
conduct or guarding against its consequences. (emphasis supplied)

To be entitled to damages for an injury resulting from the negligence of another, a claimant must
establish the relation between the omission and the damage. He must prove under Article 2179 of
the New Civil Code that the defendant's negligence was the immediate and proximate cause of his
injury. Proximate cause has been 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 (Vda. de Bataclan, et al. v. Medina, 102 Phil. 181, 186). Proof of such relation of
cause and effect is not an arduous one if the claimant did not in any way contribute to the negligence
of the defendant. However, where the resulting injury was the product of the negligence of both
parties, there exists a difficulty to discern which acts shall be considered the proximate cause of the
accident. In Taylor v.Manila Electric Railroad and Light Co. (16 Phil. 8, 29-30), this Court set a
guideline for a judicious assessment of the situation:

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 produced the event giving occasion for damages that is, the
sinking of the track and the sliding of the iron rails. To this event, the act of the
plaintiff in walking by the side of the car did not contribute, although it was an
element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the occurrence,
he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence. (emphasis Ours)

Applying all these established doctrines in the case at bar and after a careful scrutiny of the records,
We find no compelling reason to grant the petition. We affirm.

Petitioners fault the city government of Davao for failing to clean a septic tank for the period of 19
years resulting in an accumulation of hydrogen sulfide gas which killed the laborers. They contend
that such failure was compounded by the fact that there was no warning sign of the existing danger
and no efforts exerted by the public respondent to neutralize or render harmless the effects of the
toxic gas. They submit that the public respondent's gross negligence was the proximate cause of the
fatal incident.
We do not subscribe to this view. While it may be true that the public respondent has been remiss in
its duty to re-empty the septic tank annually, such negligence was not a continuing one. Upon
learning from the report of the market master about the need to clean the septic tank of the public
toilet in Agdao Public Market, the public respondent immediately responded by issuing invitations to
bid for such service. Thereafter, it awarded the bid to the lowest bidder, Mr. Feliciano Bascon (TSN,
May 24, 1983, pp. 22-25). The public respondent, therefore, lost no time in taking up remedial
measures to meet the situation. It is likewise an undisputed fact that despite the public respondent's
failure to re-empty the septic tank since 1956, people in the market have been using the public toilet
for their personal necessities but have remained unscathed. The testimonies of Messrs. Danilo
Garcia and David Secoja (plaintiffs'-petitioners' witnesses) on this point are relevant, to wit:

Atty. Mojica, counsel for defendant Davao City:

xxx xxx xxx

The place where you live is right along the Agdao creek, is that
correct?

DANILO GARCIA:

A Yes, sir.

Q And to be able to go to the market place, where you claim you

have a stall,, you have to pass on the septic tank?

A Yes, sir.

Q Day in and day out, you pass on top of the septic tank?

A Yes, sir.

Q Is it not a fact that everybody living along the creek passes on top
of this septic tank as they go out from the place and return to their
place of residence, is that correct?

And this septic tank, rather the whole of the septic tank, is covered by
lead . . .?

A Yes, sir. there is cover.

Q And there were three (3) of these lead covering the septic tank?

A Yes, sir.

Q And this has always been closed?

A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis supplied)

ATTY. JOVER, counsel for the plaintiffs:

 Q You said you are residing at Davao City, is it not?

DAVID SEJOYA:

A Yes, sir.

Q How long have you been a resident of Agdao?

A Since 1953.

Q Where specifically in Agdao are you residing?

A At the Public Market.

Q Which part of the Agdao Public Market is your house located?

A Inside the market in front of the fish section.

Q Do you know where the Agdao septic tank is located?

A Yes, sir.

Q How far is that septic tank located from your house?

A Around thirty (30) meters.

Q Have you ever had a chance to use that septic tank (public toilet)?

A Yes, sir.

Q How many times, if you could remember?

A Many times, maybe more than 1,000 times.

Q Prior to November 22, 1975, have you ever used that septic tank
(public toilet)?

A Yes, sir.

Q How many times have you gone to that septic tank (public toilet)
prior to that date, November 22, 1975?

A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)

The absence of any accident was due to the public respondent's compliance with the
sanitary and plumbing specifications in constructing the toilet and the septic tank (TSN,
November 4, 1983, p. 51). Hence, the toxic gas from the waste matter could not have leaked
out because the septic tank was air-tight (TSN, ibid, p. 49). The only indication that the septic
tank in the case at bar was full and needed emptying was when water came out from it (TSN,
September 13, 1983, p. 41). Yet, even when the septic tank was full, there was no report of
 any casualty of gas poisoning despite the presence of people living near it or passing on top
of it or using the public toilet for their personal necessities.

Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to emphasize the
negligence of the city government and presented witnesses to attest on this lack. However, this
strategy backfired on their faces. Their witnesses were not expert witnesses. On the other hand,
Engineer Demetrio Alindada of the city government testified and demonstrated by drawings how the
safety requirements like emission of gases in the construction of both toilet and septic tank have
been complied with. He stated that the ventilation pipe need not be constructed outside the building
as it could also be embodied in the hollow blocks as is usually done in residential buildings (TSN,
November 4, 1983, pp. 50-51). The petitioners submitted no competent evidence to corroborate their
oral testimonies or rebut the testimony given by Engr. Alindada.

We also do not agree with the petitioner's submission that warning signs of noxious gas should have
been put up in the toilet in addition to the signs of "MEN" and "WOMEN" already in place in that
area. Toilets and septic tanks are not nuisances per se as defined in Article 694 of the New Civil
Code which would necessitate warning signs for the protection of the public. While the construction
of these public facilities demands utmost compliance with safety and sanitary requirements, the
putting up of warning signs is not one of those requirements. The testimony of Engr. Alindada on this
matter is elucidative:

ATTY. ALBAY:

Q Mr. Witness, you mentioned the several aspects of the approval of

the building permit which include the plans of an architect, senitary
engineer and electrical plans. All of these still pass your approval as
building official, is that correct?

DEMETRIO ALINDADA:

A Yes.

Q So there is the sanitary plan submitted to and will not be approved

by you unless the same is in conformance with the provisions of the
building code or sanitary requirements?

A Yes, for private building constructions.

Q How about public buildings?

A For public buildings, they are exempted for payment of building

permits but still they have to have a building permit.

Q But just the same, including the sanitary plans, it require your
approval?

A Yes, it requires also.

Q Therefore, under the National Building Code, you are empowered

not to approve sanitary plans if they are not in conformity with the
sanitary requirements?
 A Yes.

Q Now, in private or public buildings, do you see any warning signs in

the vicinity of septic tanks?

A There is no warning sign.

Q In residential buildings do you see any warning sign?

A There is none.

ATTY. AMPIG:

We submit that the matter is irrelevant and immaterial, Your Honor.

ATTY. ALBAY:

But that is in consonance with their cross-examination, your Honor.

COURT:

Anyway it is already answered.

ATTY. ALBAY:

Q These warning signs, are these required under the preparation of

the plans?

A It is not required.

Q I will just reiterate, Mr. Witness. In residences, for example like the
residence of Atty. Ampig or the residence of the honorable Judge,
would you say that the same principle of the septic tank, from the
water closet to the vault, is being followed?

A Yes.

ATTY. ALBAY:

That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-63)

In view of this factual milieu, it would appear that an accident such as toxic gas leakage from the
septic tank is unlikely to happen unless one removes its covers. The accident in the case at bar
occurred because the victims on their own and without authority from the public respondent opened
the septic tank. Considering the nature of the task of emptying a septic tank especially one which
has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the
attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of
service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men
to take precautionary measures for their safety was the proximate cause of the accident. In Culion
Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We held that when a person
holds himself out as being competent to do things requiring professional skill, he will be held liable
for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work
which he attempts to do (emphasis Ours). The fatal accident in this case would not have happened
but for the victims' negligence. Thus, the appellate court was correct to observe that:

. . . Could the victims have died if they did not open the septic tank which they were
not in the first place authorized to open? Who between the passive object (septic
tank) and the active subject (the victims herein) who, having no authority therefore,
arrogated unto themselves, the task of opening the septic tank which caused their
own deaths should be responsible for such deaths. How could the septic tank which
has been in existence since the 1950's be the proximate cause of an accident that
occurred only on November 22, 1975? The stubborn fact remains that since 1956 up
to occurrence of the accident in 1975 no injury nor death was caused by the septic
tank. The only reasonable conclusion that could be drawn from the above is that the
victims' death was caused by their own negligence in opening the septic tank. . . .
(Rollo, p. 23)

Petitioners further contend that the failure of the market master to supervise the area where the
septic tank is located is a reflection of the negligence of the public respondent.

We do not think so. The market master knew that work on the septic tank was still forthcoming. It
must be remembered that the bidding had just been conducted. Although the winning bidder was
already known, the award to him was still to be made by the Committee on Awards. Upon the other
hand, the accident which befell the victims who are not in any way connected with the winning bidder
happened before the award could be given. Considering that the case was yet no award to
commence work on the septic tank, the duty of the market master or his security guards to supervise
the work could not have started (TSN, September 13, 1983, p. 40). Also, the victims could not have
been seen working in the area because the septic tank was hidden by a garbage storage which is
more or less ten (10) meters away from the comfort room itself (TSN, ibid, pp. 38-39). The
surreptitious way in which the victims did their job without clearance from the market master or any
of the security guards goes against their good faith. Even their relatives or family members did not
know of their plan to clean the septic tank.

Finally, petitioners' insistence on the applicability of Article 24 of the New Civil Code cannot be
sustained. Said law states:

Art. 24. In all contractual, property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for his
protection.

We approve of the appellate court's ruling that "(w)hile one of the victims was invited to bid
for said project, he did not win the bid, therefore, there is a total absence of contractual
relations between the victims and the City Government of Davao City that could give rise to
any contractual obligation, much less, any liability on the part of Davao City." (Rollo, p. 24)
The accident was indeed tragic and We empathize with the petitioners. However, the herein
circumstances lead Us to no other conclusion than that the proximate and immediate cause
of the death of the victims was due to their own negligence. Consequently, the petitioners
cannot demand damages from the public respondent.

ACCORDINGLY, the amended decision of the Court of Appeals dated January 11, 1990 is
AFFIRMED. No costs.
XXX HISOLE CASE HERE XXX

LAST CLEAR CHANCE

XXX PICART CASE HERE XXX

G.R. No. L-68102 July 16, 1992

GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R.
CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29
November 1983 reversing the Decision of the trial court which dismissed petitioners' complaints in
Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial
Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh
McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and
Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted the private
respondents' counterclaim for moral damages, attorney's fees and litigation expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident
which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical
injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee
and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner
Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children,
respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand,
private respondents are the owners of the cargo truck which figured in the mishap; a certain Ruben
Galang was the driver of the truck at the time of the accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along
MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took
place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned
by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-
850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh
McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and
Araceli Koh McKee, all passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher
and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year
old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front
passenger's seat of the car while Araceli and her two (2) sons were seated at the car's back seat.

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

The incident was immediately reported to the police station in Angeles City; consequently, a team of
police officers was forthwith dispatched to conduct an on the spot investigation. In the
sketch 1 prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps"
long and fourteen (14) "footsteps" wide seven (7) "footsteps" from the center line to the inner
edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of
concrete with soft shoulders and concrete railings on both sides about three (3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two
(2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching the center
line of the bridge, with the smashed front side of the car resting on its front bumper. The truck was
about sixteen (16) "footsteps" away from the northern end of the bridge while the car was about
thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right front tire of the
truck measured nine (9) "footsteps", while skid marks produced by the left front tire measured five (5)
"footsteps." The two (2) rear tires of the truck, however, produced no skid marks.

In his statement to the investigating police officers immediately after the accident, Galang admitted
that he was traveling at thirty (30) miles (48 kilometers) per hour.

As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on
31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III
and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed
for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral
damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for
burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the
second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the death
of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services, P3,650.00
for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00 as
exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh
McKee, in connection with the serious physical injuries suffered, the sum of P100,000.00 as moral
damages, P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the
hospitalization expenses up to the date of the filing of the complaint; and (c) with respect to George
McKee, Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as moral
damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400 payable
to the Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00 payable to
the Clark Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also sought
an award of attorney's fees amounting to 25% of the total award plus traveling and hotel expenses,
with costs. 4

On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the
trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the
same Branch where Civil Case No. 4478 was assigned. 5

In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was
the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang
and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual
and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In
Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of pendency of
another action (Civil Case No. 4477) and failure to implead an indispensable party, Ruben Galang,
the truck driver; they also filed a motion to consolidate the case with Civil Case No. 4477 pending
before Branch III of the same court, which was opposed by the plaintiffs. 7 Both motions were denied
by Branch V, then presided over by Judge Ignacio Capulong. Thereupon, private respondents filed
their Answer with Counter-claim 8 wherein they alleged that Jose Koh was the person "at fault having approached the lane of
the truck driven by Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed observing all traffic rules
and regulations applicable under the circumstances then prevailing;" in their counterclaim, they prayed for an award of damages as may be
determined by the court after due hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to
adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which
private respondents opposed and which the court denied. 9 Petitioners subsequently moved to
reconsider the order denying the motion for consolidation, 10 which Judge Capulong granted in the
Order of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil
Case No. 4477 in Branch III of the court then presided over by Judge Mario Castaeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col.
Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered
several documentary exhibits. Upon the other hand, private respondents presented as witnesses
Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector,
Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and
Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the defense
presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and
offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the
aforesaid criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the

accused Ruben Galang guilty beyond reasonable doubt of the crime charged in the
 information and after applying the provisions of Article 365 of the Revised Penal
Code and indeterminate sentence law, this Court, imposes upon said accused
Ruben Galang the penalty of six (6) months of arresto mayor as minimum to two (2)
years, four (4) months and one (1) day of prision correccional as maximum; the
accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the
amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida
Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs
of Loida Bondoc the amount of P20,000.00 representing her loss of income; to
indemnify and pay the heirs of the deceased Jose Koh the value of the car in the
amount of P53,910.95, and to pay the costs. 15

The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for
petitioners filed with Branch III of the court where the two (2) civil cases were pending a
manifestation to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12 November
1980 and awarded the private respondents moral damages, exemplary damages and attorney's
fees. 17 The dispositive portion of the said decision reads as follows:

WHEREFORE, finding the preponderance of evidence to be in favor of the

defendants and against the plaintiffs, these cases are hereby ordered DISMISSED
with costs against the plaintiffs. The defendants had proven their counter-claim, thru
evidences (sic) presented and unrebutted. Hence, they are hereby awarded moral
and exemplary damages in the amount of P100,000.00 plus attorney's fee of
P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages claimed
for (sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect
(sic). 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was
received on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal
was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs
in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to
the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No.
69040-R, respectively, and were assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR
affirming the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa

kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng
paghahabol.

A motion for reconsideration of the decision was denied by the respondent Court in
its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this
Court; said petition was subsequently denied. A motion for its reconsideration was denied with
finality in the Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive
portion of which reads:
WHEREFORE, the decision appealed from it hereby reversed and set aside and
another one is rendered, ordering defendants-appellees to pay plaintiffs-appellants
as follows:

For the death of Jose Koh:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damages

P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damages

P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damages

P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and
another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26
The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's
inattentiveness or reckless imprudence which caused the accident. The appellate court further said
that the law presumes negligence on the part of the defendants (private respondents), as employers
of Galang, in the selection and supervision of the latter; it was further asserted that these defendants
did not allege in their Answers the defense of having exercised the diligence of a good father of a
family in selecting and supervising the said employee.27 This conclusion of reckless imprudence is
based on the following findings of fact:

In the face of these diametrically opposed judicial positions, the determinative issue
in this appeal is posited in the fourth assigned error as follows:

IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK
STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND
COULD NOT SWERVE TO THE RIGHT.

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross
the right lane on the right side of the highway going to San Fernando.
My father, who is (sic) the driver of the car tried to avoid the two (2)
boys who were crossing, he blew his horn and swerved to the left to
avoid hitting the two (2) boys. We noticed the truck, he switched on
the headlights to warn the truck driver, to slow down to give us the
right of way to come back to our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right
lane since the truck is (sic) coming, my father stepped on the brakes
and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6,
July 22, 1977); or (Exhibit "O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused,
Ruben Galang did not reduce its speed before the actual impact of
collision (sic) as you narrated in this Exhibit "1," how did you know
(sic)?

A It just kept on coming, sir. If only he reduced his speed, we could

have got (sic) back to our right lane on side (sic) of the highway, sir.
(tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases)
(pp. 30-31, Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck
stopped only when it had already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he was

one of the first to arrive at the scene of the accident. As a matter of fact, he brought
one of the injured passengers to the hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida
Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived across
the street.

Regarding Soliman, experience has shown that in the ordinary course of events
people usually take the side of the person with whom they are associated at the time
of the accident, because, as a general rule, they do not wish to be identified with the
person who was at fault. Thus an imaginary bond is unconsciously created among
the several persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-
CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation
witness. He did not go to the succor of the injured persons. He said he wanted to call
the police authorities about the mishap, but his phone had no dial tone. Be this (sic)
as it may, the trial court in the criminal case acted correctly in refusing to believe
Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped
his truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants'
Brief). This contention of appellants was completely passed sub-silencio or was not
refuted by appellees in their brief. Exhibit 2 is one of the exhibits not included in the
record. According to the Table of Contents submitted by the court below, said Exhibit
2 was not submitted by defendants-appellees. In this light, it is not far-fetched to
surmise that Galang's claim that he stopped was an eleventh-hour desperate attempt
to exculpate himself from imprisonment and damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspite of the fact that you
admitted that the road is straight and you may be able to (sic) see
500-1000 meters away from you any vehicle, you first saw that car
only about ten (10) meters away from you for the first time?
 xxx xxx xxx

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO:

Q So, for clarification, you clarify and state under your oath that you
have (sic) not noticed it before that ten (10) meters? (Tsn. 3 to 5,
Sept. 18, 1979). (p. 16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped

only because of the impact. At ten (10) meters away, with the truck running at 30
miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is
well-nigh impossible to avoid a collision on a bridge.

5. Galang's truck stopped because of the collision, and not because he waited for
Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L.
Nuag, stated that he found skid marks under the truck but there were not (sic) skid
marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid marks
show (sic) that the truck was speeding. Since the skid marks were found under the
truck and none were found at the rear of the truck, the reasonable conclusion is that
the skid marks under the truck were caused by the truck's front wheels when the
trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the
same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very short
distance to avoid a collision, and in his futile endeavor to avoid the collision he
abruptly stepped on his brakes but the smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes

negligence on the part of the defendants in the selection of their driver or in the
supervision over him. Appellees did not allege such defense of having exercised the
duties of a good father of a family in the selection and supervision of their employees
in their answers. They did not even adduce evidence that they did in fact have
methods of selection and programs of supervision. The inattentiveness or negligence
of Galang was the proximate cause of the mishap. If Galang's attention was on the
highway, he would have sighted the car earlier or at a very safe distance than (sic)
10 meters. He proceeded to cross the bridge, and tried to stop when a collision was
already inevitable, because at the time that he entered the bridge his attention was
not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the
items must be reduced. 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by
private respondents on the basis of which the respondent Court, in its Resolution of 3 April
1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial
court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the
respondent Court on 4 July 1984.30

Hence, this petition.

Petitioners allege that respondent Court:

 I

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY

REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE
"PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS'
DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED
THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO
DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS;
THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B,
PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS,
CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT

DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY
STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE
FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE
TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A

MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT
UPON THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED IN
THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE
CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE
RESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE

ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY
INAPPLICABLE TO THESE CASES.

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION

IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY
ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS,
SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND
JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF

DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE
PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY
EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW
AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.
 VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF

DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS
DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY IN
ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE
RELATIVE TO THE AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the

petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court
then gave due course to the instant petitions and required petitioners to file their Brief, 35 which they
accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and
counter-arguments, some observations on the procedural vicissitudes of these cases are in order.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-
delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal
Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint
trial in Branch III of the trial court. The records do not indicate any attempt on the part of the parties,
and it may therefore be reasonably concluded that none was made, to consolidate Criminal Case
No. 3751 with the civil cases, or vice-versa. The parties may have then believed, and
understandably so, since by then no specific provision of law or ruling of this Court expressly allowed
such a consolidation, that an independent civil action, authorized under Article 33 in relation to
Article 2177 of the Civil Code, such as the civil cases in this case, cannot be consolidated with the
criminal case. Indeed, such consolidation could have been farthest from their minds as Article 33
itself expressly provides that the "civil action shall proceed independently of the criminal prosecution,
and shall require only a preponderance of evidence." Be that as it may, there was then no legal
impediment against such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to
avoid a multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested
dockets to simplify the work of the trial court, or in short, attain justice with the least expense to the
parties litigants, 36 would have easily sustained a consolidation, thereby preventing the unseeming, if
no ludicrous, spectacle of two (2) judges appreciating, according to their respective orientation,
perception and perhaps even prejudice, the same facts differently, and thereafter
rendering conflicting decisions. Such was what happened in this case. It should not, hopefully,
happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the
present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an
independent civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176
of the Civil Code with the criminal action subject, however, to the condition that no final judgment
has been rendered in that criminal case.

Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of
reckless imprudence, although already final by virtue of the denial by no less than this Court of his
last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has no
relevance or importance to this case.

As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-
delict is entirely separate and distinct from the civil liability arising from negligence under the Penal
Code. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case
of independent civil actions under the new Civil Code, the result of the criminal case, whether
acquittal or conviction, would be entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and
PNB vs. Purisima, 40 this Court stated:
 . . . It seems perfectly reasonable to conclude that the civil actions mentioned in
Article 33, permitted in the same manner to be filed separately from the criminal
case, may proceed similarly regardless of the result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be filed
separately and to proceed independently even during the pendency of the latter
case, the intention is patent to make the court's disposition of the criminal case of no
effect whatsoever on the separate civil case. This must be so because the offenses
specified in Article 33 are of such a nature, unlike other offenses not mentioned, that
they may be made the subject of a separate civil action because of the distinct
separability of their respective juridical cause or basis of action . . . .

What remains to be the most important consideration as to why the decision in the criminal case
should not be considered in this appeal is the fact that private respondents were not parties therein.
It would have been entirely different if the petitioners' cause of action was for damages arising from
a delict, in which case private respondents' liability could only be subsidiary pursuant to Article 103
of the Revised Penal Code. In the absence of any collusion, the judgment of conviction in the
criminal case against Galang would have been conclusive in the civil cases for the subsidiary liability
of the private respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether or
not respondent Court's findings in its challenged resolution are supported by evidence or are based
on mere speculations, conjectures and presumptions.

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The
resolution of factual issues is the function of the lower courts whose findings on these matters are
received with respect and are, as a rule, binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the
Court of Appeals may be set aside when such findings are not supported by the evidence or when
the trial court failed to consider the material facts which would have led to a conclusion different from
what was stated in its judgment. 43 The same is true where the appellate court's conclusions are
grounded entirely on conjectures, speculations and surmises 44 or where the conclusions of the lower
courts are based on a misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are based on an misapprehension of facts
and the inferences made therefrom are manifestly mistaken. The respondent Court's decision of 29
November 1983 makes the correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the
lane of the truck and that the collision occurred in said lane gave rise to the presumption that the
driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate
court immediately concluded that it was Jose Koh's negligence that was the immediate and
proximate cause of the collision. This is an unwarranted deduction as the evidence for the petitioners
convincingly shows that the car swerved into the truck's lane because as it approached the southern
end of the bridge, two (2) boys darted across the road from the right sidewalk into the lane of the car.
As testified to by petitioner Araceli Koh McKee:
 Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross
the right lane on the right side of the highway going to San Fernando.
My father, who is (sic) the driver of the car tried to avoid the two (2)
boys who were crossing, he blew his horn and swerved to the left to
avoid hitting the two (2) boys. We noticed the truck, he switched on
the headlights to warn the truck driver, to slow down to give us the
right of way to come back to our right lane.

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right
lane since the truck is (sic) coming, my father stepped on the brakes
and all what (sic) I heard is the sound of impact (sic), sir. 46

Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into
the lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater
peril death or injury to the two (2) boys. Such act can hardly be classified as negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate
Court, 47 thus:

. . . Negligence is the omission to do something which a reasonable man, guided by

those considerations which ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and reasonable man would not do
(Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it, "(T)he
failure to observe for the protection of the interests of another person, that degree of
care, precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury." (Cooley on Torts, Fourth Edition, vol. 3, 265)

In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a
sound rule, (W)e held:

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 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 paterfamiliasof the Roman
law. . . .

In Corliss vs. Manila Railroad Company, 48 We held:

. . . Negligence is want of the care required by the circumstances. It is a relative or

comparative, not an absolute, term and its application depends upon the situation of
 the parties and the degree of care and vigilance which the circumstances reasonably
require. Where the danger is great, a high degree of care is necessary, and the
failure to observe it is a want of ordinary care under the circumstances. (citing Ahern
v. Oregon Telephone Co., 35 Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it
is manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent
man would have tried to avoid running over the two boys by swerving the car away from where they
were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the
natural course to take particularly where the vehicle in the opposite lane would be several meters
away and could very well slow down, move to the side of the road and give way to the oncoming car.
Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a place of
danger, and is required to act without time to consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon
reflection may appear to have been a better method, unless the emergency in which he finds himself
is brought about by his own negligence." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh
adopted the best means possible in the given situation to avoid hitting them. Applying the above test,
therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence
was the proximate cause of the collision. Proximate cause has been 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. And more comprehensively, the proximate legal cause is that acting first
and producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as
an ordinary prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result
therefrom. 50

Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was
the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and
deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck
driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck
would not have resulted in the collision had the latter heeded the emergency signals given by the
former to slow down and give the car an opportunity to go back into its proper lane. Instead of
slowing down and swerving to the far right of the road, which was the proper precautionary measure
under the given circumstances, the truck driver continued at full speed towards the car. The truck
driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters wide
while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that
both car and truck could pass side by side with a clearance of 3.661 meters to spare. 51 Furthermore,
the bridge has a level sidewalk which could have partially accommodated the truck. Any reasonable
man finding himself in the given situation would have tried to avoid the car instead of meeting it
head-on.
The truck driver's negligence is apparent in the records. He himself said that his truck was running at
30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a
bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a
vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. We
cannot give credence to private respondents' claim that there was an error in the translation by the
investigating officer of the truck driver's response in Pampango as to whether the speed cited was in
kilometers per hour or miles per hour. The law presumes that official duty has been regularly
performed; 53 unless there is proof to the contrary, this presumption holds. In the instant case, private
respondents' claim is based on mere conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony of
petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco,
an impartial eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused,
Ruben Galang did not reduce its speed before the actual impact of
collision as you narrated in this Exhibit "1," how did you know?

A It just kept on coming, sir. If only he reduced his speed, we could

have got (sic) back to our right lane on side (sic) of the highway, sir.
(tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases)
(pp. 30-31, Appellants' Brief)54

while Eugenio Tanhueco testified thus:

Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what happened?

A I saw the truck and a car collided (sic), sir, and I went to the place
to help the victims. (tsn. 28, April 19, 1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will you
tell us if the said truck ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the car
and it was already motionless. (tsn. 31, April 19, 1979; Emphasis
Supplied). (p. 27, Appellants' Brief). 55

Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the collision which was the proximate cause of the
resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last
clear chance is a doctrine in the law of torts which states that the contributory negligence of the party
injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise
of reasonable care and prudence, have avoided the consequences of the negligence of the injured
party. In such cases, the person who had the last clear chance to avoid the mishap is considered in
law solely responsible for the consequences thereof.56

In Bustamante vs. Court of Appeals, 57 We held:

The respondent court adopted the doctrine of "last clear chance." The doctrine,
stated broadly, is that the negligence of the plaintiff does not preclude a recovery for
the negligence of the defendant where it appears that the defendant, by exercising
reasonable care and prudence, might have avoided injurious consequences to the
plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last
clear chance means that even though a person's own acts may have placed him in a
position of peril, and an injury results, the injured person is entitled to recovery (sic).
As the doctrine is usually stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his
opponent or that of a third person imputed to the opponent is considered in law solely
responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th
Ed., 1986, p. 165).

The practical import of the doctrine is that a negligent defendant is held liable to a
negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing
himself in peril, if he, aware of the plaintiff's peril, or according to some authorities,
should have been aware of it in the reasonable exercise of due care, had in fact an
opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp.
798-799).

In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:

The doctrine of last clear chance was defined by this Court in the case of Ong v.
Metropolitan Water District, 104 Phil. 397 (1958), in this wise:

The doctrine of the last clear chance simply, means that the
negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by exercising
reasonable care and prudence, might have avoided injurious
consequences to claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or
antecedent negligence but the defendant, who had the last fair chance to avoid the
impending harm and failed to do so, is made liable for all the consequences of the
accident notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil.
809 (1918); Glan People's Lumber and Hardware, et al. vs. Intermediate Appellate
Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The
subsequent negligence of the defendant in failing to exercise ordinary care to avoid
injury to plaintiff becomes the immediate or proximate cause of the accident which
intervenes between the accident and the more remote negligence of the plaintiff, thus
making the defendant liable to the plaintiff [Picart v. Smith, supra].
 Generally, the last clear chance doctrine is invoked for the purpose of making a
defendant liable to a plaintiff who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's
negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate
cause of the collision. As employers of the truck driver, the private respondents are, under Article
2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that
they are negligent flows from the negligence of their employee. That presumption, however, is
only juris tantum, not juris et de jure. 59 Their only possible defense is that they exercised all the
diligence of a good father of a family to prevent the damage. Article 2180 reads as follows:

The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are
not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.

The diligence of a good father referred to means the diligence in the selection and supervision of
employees. 60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not
interpose this defense. Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the
decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution
of 3 April 1984 finds no sufficient legal and factual moorings.

In the light of recent decisions of this Court, 61 the indemnity for death must, however, be increased
from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of
3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41
is REINSTATED, subject to the modification that the indemnity for death is increased from
P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

XXX SABIDO VS CUSTODIO 3rd case HERE XXX

EMERGENCY RULE

XXX MCKEE VS IAC HERE XXX

G.R. No. L-44264 September 19, 1988

HEDY GAN y YU, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

Pacis, Baluyot, Reyes & De Leon for petitioner.

The Solicitor General for respondents.

FERNAN, C.J.:

Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in Criminal Case No. 10201 of the then Court of First
Instance of Manila, Branch XXII presided by Judge Federico C. Alikpala. She was sentenced to an indeterminate penalty of four (4) months
and one (1) day of arresto mayor as minimum and two (2) years, four (4) months and one (1) day of prision correccional as maximum and
was made to indemnify the heirs of the victim the sum of P12,000.00 without any subsidiary imprisonment in case of insolvency and to pay
the costs. On appeal, the trial court's decision was modified and petitioner was convicted only of Homicide thru Simple Imprudence. Still
unsatisfied with the decision of the Court of Appeals,1 petitioner has come to this Court for a complete reversal of the judgment below.

The facts of the case as found by the appellate court are as follows:

In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was
driving a Toyota car along North Bay Boulevard, Tondo, Manila. While in front of
house no. 694 of North Bay Boulevard, there were two vehicles, a truck and a
jeepney parked on one side of the road, one following the other about two to three
meters from each other. As the car driven by the accused approached the place
where the two vehicles were parked, there was a vehicle coming from the opposite
direction, followed by another which tried to overtake and bypass the one in front of it
and thereby encroached the lane of the car driven by the accused. To avoid a head-
on collision with the oncoming vehicle, the defendant swerved to the right and as a
consequence, the front bumper of the Toyota Crown Sedan hit an old man who was
about to cross the boulevard from south to north, pinning him against the rear of the
parked jeepney. The force of the impact caused the parked jeepney to move forward
hitting the rear of the parts truck ahead of it. The pedestrian was injured, the Toyota
Sedan was damaged on its front, the jeep suffered damages on its rear and front
paints, and the truck sustained scratches at the wooden portion of its rear. The body
of the old man who was later Identified as Isidoro Casino was immediately brought to
the Jose Reyes Memorial Hospital but was (pronounced) dead on arrival.2

An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the
above incident. She entered a plea of not guilty upon arraignment and the case was set for trial.

Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of
which the trial fiscal moved for the dismissal of the case against petitioner during the resumption of
hearing on September 7, 1972. The grounds cited therefor were lack of interest on the part of the
complaining witness to prosecute the case as evidenced by an affidavit of desistance submitted to
the trial court and lack of eyewitness to sustain the charge.

The motion to dismiss filed by the fiscal was never resolved. The Court instead ordered the
prosecution to present its evidence. After the prosecution rested its case, the petitioner filed a motion
to dismiss the case on the ground of insufficiency of evidence.
On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond reasonable
doubt of the of- offense charged.

Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, 1976, the Court of
Appeals rendered a decision, the dispositive portion of which reads as follows:

Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of
the crime of homicide thru simple imprudence and, pursuant to paragraph 2, Article
365 of the Revised Penal Code, she is hereby sentenced to the indeterminate
penalty of three (3) months and eleven (11) days of arresto mayor and to indemnify
the heirs of Isidoro Casino in the sum of Twelve Thousand Pesos (Pl2,000.00)
without, however, any subsidiary imprisonment in case of insolvency, and to pay the
costs. 3

Petitioner now appeals to this Court on the following assignments of errors:

The Court of Appeals erred in holding that when the petitioner saw a car travelling
directly towards her, she should have stepped on the brakes immediately or in
swerving her vehicle to the right should have also stepped on the brakes or lessened
her speed, to avoid the death of a pedestrian.

II

The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru
Simple Imprudence.

III

The Court of Appeals erred in adjudging the petitioner liable to indemnify the
deceased in the sum of P12,000.00.4

We reverse.

The test for determining whether or not a person is negligent in doing an act whereby injury or
damage results to the person or property of another is this: Would a prudent man in the position of
the person to whom negligence is attributed foresee harm to the person injured as a reasonable
consequence of the course about to be pursued? If so, the law imposes the duty oil the doer to take
precaution against its mischievous results and the failure to do so constitutes negligence. 5

A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who
suddenly finds himself in a place of danger, and is required to act without time to consider the best
means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to
adopt what subsequently and upon reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his own negligence." 6

Applying the above test to the case at bar, we find the petitioner not guilty of the crime of Simple
Imprudence resulting in Homicide.

The appellate court in finding the petitioner guilty said:

 The accused should have stepped on the brakes when she saw the car going in the
opposite direction followed by another which overtook the first by passing towards its
left. She should not only have swerved the car she was driving to the right but should
have also tried to stop or lessen her speed so that she would not bump into the
pedestrian who was crossing at the time but also the jeepney which was then parked
along the street. 7

The course of action suggested by the appellate court would seem reasonable were it not for the fact
that such suggestion did not take into account the amount of time afforded petitioner to react to the
situation she was in. For it is undeniable that the suggested course of action presupposes sufficient
time for appellant to analyze the situation confronting her and to ponder on which of the different
courses of action would result in the least possible harm to herself and to others.

Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the
relative distances of petitioner to the parked jeepney and the oncoming overtaking vehicle that would
tend to prove that petitioner did have sufficient time to reflect on the consequences of her instant
decision to swerve her car to the light without stepping on her brakes. In fact, the evidence
presented by the prosecution on this point is the petitioner's statement to the police 8 stating::

And masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake

sa sasakyan na aking kasalubong kung kaya ay aking kinabig sa kanan ang akin
kotse subalit siya naman biglangpagtawid ng tao o victim at hindi ko na ho naiwasan
at ako ay wala ng magawa . Iyan ho ang buong pangyayari nang nasabing
aksidente.9 (Emphasis supplied)

The prosecution having presented this exhibit as its own evidence, we cannot but deem its veracity
to have been admitted by it. Thus, under the circumstances narrated by petitioner, we find that the
appellate court is asking too much from a mere mortal like the petitioner who in the blink of an eye
had to exercise her best judgment to extricate herself from a difficult and dangerous situation caused
by the driver of the overtaking vehicle. Petitioner certainly could not be expected to act with all the
coolness of a person under normal conditions. 10 The danger confronting petitioner was real and
imminent, threatening her very existence. She had no opportunity for rational thinking but only
enough time to heed the very powerfull instinct of self-preservation.

Also, the respondent court itself pronounced that the petitioner was driving her car within the legal
limits. We therefore rule that the "emergency rule" enunciated above applies with full force to the
case at bar and consequently absolve petitioner from any criminal negligence in connection with the
incident under consideration.

We further set aside the award of damages to the heirs of the victim, who by executing a release of
the claim due them, had effectively and clearly waived their right thereto.

WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime of
Homicide thru Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity
awarded by the appellate court to the heirs of the victim.

G.R. No. 115024 February 7, 1996

MA. LOURDES VALENZUELA, petitioner,
vs.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x

G.R. No. 117944 February 7, 1996

RICHARD LI, petitioner,

vs.
COURT OF APPEALS and 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.

Plaintiff's 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 car's
condition, she parked along the sidewalk, about 1-1/2 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 defendant's car. Plaintiff's 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 (P120,000.00) 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 plaintiff's 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 plaintiff's 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 plaintiff's 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 plaintiff's car was "near
the sidewalk"; this witness did not remember whether the hazard lights of plaintiff's 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, defendant's car came approaching very fast ten meters
from the scene; the car was "zigzagging". The rear left side of plaintiff's car was bumped by
the front right portion of defendant's car; as a consequence, the plaintiff's car swerved to the
right and hit the parked car on the sidewalk. Plaintiff was thrown to the windshield of
defendant's 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 plaintiff's 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., Li's 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
plaintiff's 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 plaintiff's 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 attorney's fees; and

6. Costs.
As a result of the trial court's 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 court's finding that the plaintiff's car was properly parked at the right, beside the sidewalk
when it was bumped by defendant's car."1 Dismissing the defendants' argument that the plaintiff's 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 Li's 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"; defendant's 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 defendant's care, causing its
destruction. He came to the rescue of the plaintiff, who was pulled out from under
defendant's 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 1970's, 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 Li's 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, attorney's fees and the other
damages. The Court of Appeals, likewise, dismissed the defendants' counterclaims.3

Consequently, both parties assail the respondent court's 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 Valenzuela's 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 court's
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, Valenzuela's 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 defendant's Mitsubishi Lancer, from
where she eventually fell under the defendant's 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
Valenzuela's car parked parallel and very near the sidewalk,8 contrary to Li's allegation that
Valenzuela's car was close to the center of the right lane. We agree that as between Li's "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 latter's 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 court's reliance on the testimony of Rodriguez negating
defendant's 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 se 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 plaintiff's
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 Rodriguez's testimony that would impair the essential integrity
of his testimony or reflect on his honesty. We are compelled to affirm the trial court's
acceptance of the testimony of said eyewitness.
Against the unassailable testimony of witness Rodriguez we note that Li's 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 Valenzuela's 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) plaintiff's 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 Li's 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 Li's 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 Rodriguez; 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 Valenzuela's 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 plaintiff's 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 plaintiff's 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 on 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
thoroughful 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 1/2 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 Valenzuela's car was parked very close
to the sidewalk.21 The sketch which he prepared after the incident showed Valenzuela's 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 Presser 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

Li's 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. Li's employer. In denying
liability on the part of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's 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 Paranaque he did not have "business from
the company" (pp. 25-26, ten, Sept. 23, 1991). The use of the 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 employer's liability for the acts done within the scope of the
employee's 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 court's 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 company's 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 Li's
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 Appeals29 upon which respondent court has
placed undue reliance, dealt with the subject of a school and its teacher's 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 employer's 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 employer's 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 latter's 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 employee's private activities or during the
performance of tasks either unsanctioned by the former or unrelated to the employee's 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 company's 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 latter's goodwill before its clientele. It also facilitated meeting between Li and its
clients by providing the former with a convenient mode of travel.

Moreover, Li's 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 Paranaque was a bare allegation which was never
corroborated in the court below. It was obviously self-serving. Assuming he really came from his
officemate's 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 P1,000,000.00 to P800,000,00 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 Court's 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 Li's 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.
CONTRIBUTORY NEGLIGENCE

G.R. No. 83491 August 27, 1990

MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO ARANETA, petitioners,

vs.
HON. COURT OF APPEALS and HERMINIA FAMOSO, respondents.

Jalandoni, Herrera, Del Castillo & Associates for petitioners.

Napoleon Corral for private respondent.

CRUZ, J.:

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

On March 22, 1980, Famoso was riding with a co-employee in the caboose or "carbonera" of
Plymouth No. 12, a cargo train of the petitioner, when the locomotive was suddenly derailed. He and
his companion jumped off to escape injury, but the train fell on its side, caught his legs by its wheels
and pinned him down. He was declared dead on the spot. 1

The claims for death and other benefits having been denied by the petitioner, the herein private
respondent filed suit in the Regional Trial Court of Bago City. Judge Marietta Hobilla-Alinio ruled in
her favor but deducted from the total damages awarded 25% thereof for the decedent's contributory
negligence and the total pension of P41,367.60 private respondent and her children would be
receiving from the SSS for the next five years. The dispositive portion of the decision read:

WHEREFORE, in view of the foregoing facts and circumstances present in this case,
the Court order, as it does hereby order the defendant Ma-ao Sugar Central thru its
Manager Mr. Guillermo Y. Araneta to pay plaintiff the following amount:

P30,000.00 for the death of plaintiff's husband, the late

Julio Famoso

P30,000.00 for actual, exemplary and moral damages

P10,000.00 loss of earnings for twenty (20) years

P3,000.00 funeral expenses

P73,000.00 Total Damages

Less: P18,250.00 25% for the deceased's contributory

negligence
 Less: P41,367.60 pension plaintiff and her minor children would

be receiving for five (5) years from the SSS

Pl3,382.40

Plus: P3,000.00 Attorney's fees and cost of this suit

Pl6,382.40 Total amount payable to the plaintiff.

SO ORDERED.

The widow appealed, claiming that the deductions were illegal. So did the petitioner, but on the
ground that it was not negligent and therefore not liable at all.

In its own decision, the Court of Appeals 2 sustained the rulings of the trial court except as to the
contributory negligence of the deceased and disallowed the deductions protested by the private
respondent. Thus, the respondent court declared:

WHEREFORE, the decision appealed from is MODIFIED by ordering the defendant-

appellant to pay the plaintiff-appellee the following amounts:

P30,000.00, for the death of Julio Famoso

P30,000.00, for actual, exemplary and moral damages

P10,000.00, for loss of earnings for twenty (20) years

P3,000.00, for funeral expenses

P3,000.00, for attorney's fees

P76,000.00 Total Amount

========

In this petition, the respondent court is faulted for finding the petitioner guilty of negligence
notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for disallowing
the deductions made by the trial court.

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

There is no question that the maintenance of the rails, for the purpose inter alia of preventing
derailments, was the responsibility of the petitioner, and that this responsibility was not discharged.
According to Jose Treyes, its own witness, who was in charge of the control and supervision of its
train operations, cases of derailment in the milling district were frequent and there were even times
when such derailments were reported every hour. 3 The petitioner should therefore have taken more
prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its
negligence.

The argument that no one had been hurt before because of such derailments is of course not
acceptable. And neither are we impressed by the claim that the brakemen and the conductors were
required to report any defect in the condition of the railways and to fill out prescribed forms for the
purpose. For what is important is that the petitioner should act on these reports and not merely
receive and file them. The fact that it is not easy to detect if the fish plates are missing is no excuse
either. Indeed, it should stress all the more the need for the responsible employees of the petitioner
to make periodic checks and actually go down to the railroad tracks and see if the fish plates were in
place.

It is argued that the locomotive that was derailed was on its way back and that it had passed the
same rails earlier without accident. The suggestion is that the rails were properly aligned then, but
that does not necessarily mean they were still aligned afterwards. It is possible that the fish plates
were loosened and detached during its first trip and the rails were as a result already mis-aligned
during the return trip. But the Court feels that even this was unlikely, for, as earlier noted, the fish
plates were supposed to have been bolted to the rails and could be removed only with special tools.
The fact that the fish plates were not found later at the scene of the mishap may show they were
never there at all to begin with or had been removed long before.

At any rate, the absence of the fish plates whatever the cause or reason is by itself alone proof
of the negligence of the petitioner. Res ipsa loquitur. The doctrine was described recently in Layugan
v. Intermediate Appellate Court, 4 thus:

Where the thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose
from want of care.

The petitioner also disclaims liability on the ground of Article 2176 of the Civil Code, contending it
has exercised due diligence in the selection and supervision of its employees. The Court cannot
agree. The record shows it was in fact lax in requiring them to exercise the necessary vigilance in
maintaining the rails in good condition to prevent the derailments that sometimes happened "every
hour." Obviously, merely ordering the brakemen and conductors to fill out prescribed forms reporting
derailments-which reports have not been acted upon as shown by the hourly derailments is-not the
kind of supervision envisioned by the Civil Code.

We also do not see how the decedent can be held guilty of contributory negligence from the mere
fact that he was not at his assigned station when the train was derailed. That might have been a
violation of company rules but could not have directly contributed to his injury, as the petitioner
suggests. It is pure speculation to suppose that he would not have been injured if he had stayed in
the front car rather than at the back and that he had been killed because he chose to ride in the
caboose.

Contributory negligence has been defined as "the act or omission amounting to want of ordinary care
on the part of the person injured which, concurring with the defendant's negligence, is the proximate
cause of the
injury." 5 It has been held that "to hold a person as having contributed to his injuries, it must be
shown that he performed an act that brought about his injuries in disregard of warnings or signs of
an impending danger to health and body." 6 There is no showing that the caboose where Famoso
was riding was a dangerous place and that he recklessly dared to stay there despite warnings or
signs of impending danger.

The last point raised by the petitioner is easily resolved. Citing the case of Floresca v. Philex Mining
Corporation, 7 it argues that the respondent court erred in disauthorizing the deduction from the total
damages awarded the private respondent of the amount of P41,367.60, representing the pension to
be received by the private respondent from the Social Security System for a period of five years. The
argument is that such deduction was quite proper because of Art. 173 of the Labor Code, as
amended. This article provides that any amount received by the heirs of a deceased employee from
the Employees Compensation Commission, whose funds are administered by the SSS, shall be
exclusive of all other amounts that may otherwise be claimed under the Civil Code and other
pertinent laws.

The amount to be paid by the SSS represents the usual pension received by the heirs of a deceased
employee who was a member of the SSS at the time of his death and had regularly contributed his
premiums as required by the System. The pension is the benefit derivable from such contributions. It
does not represent the death benefits payable under the Workmen's Compensation Act to an
employee who dies as a result of a work-connected injury. Indeed, the certification from the
SSS 8 submitted by the petitioner is simply to the effect that:

TO WHOM IT MAY CONCERN:

This is to certify that Mrs. Herminia Vda. de Famoso is a recipient of a monthly

pension from the Social Security System arising from the death of her late husband,
Julio Famoso, an SSS member with SSS No. 07-018173-1.

This certification is issued to Ma-ao Sugar Central for whatever legal purpose it may
serve best.

Issued this 8th day of April 1983 in Bacolod City, Philippines.

GODOFREDO
S. SISON

Regional
Manager

By: (SGD.)
COSME Q.
BERMEO, JR.
 Chief, Benefits
Branch

It does not indicate that the pension is to be taken from the funds of the ECC. The certification would
have said so if the pension represented the death benefits accruing to the heirs under the
Workmen's Compensation Act.

This conclusion is supported by the express provision of Art. 173 as amended, which categorically
states that:

Art. 173. Exclusiveness of liability. Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act
Numbered Eleven hundred sixty-one, as amended, Commonwealth Act Numbered
One hundred eighty-six, as amended, Republic Act Numbered Six hundred ten, as
amended, Republic Act Numbered Forty-eight hundred sixty-four, as amended and
other laws whose benefits are administered by the System or by other agencies of
the government. (Emphasis supplied).

Rep. Act No. 1161, as amended, is the Social Security Law.

As observed by Justice J.B.L. Reyes in the case of Valencia v. Manila Yacht Club, 9 which is still
controlling:

. . . By their nature and purpose, the sickness or disability benefits to which a

member of the System may be entitled under the Social Security law (Rep. Act No.
1161, as amended by Rep. Acts Nos. 1792 and 2658) are not the same as the
compensation that may be claimed against the employer under the Workmen's
Compensation Act or the Civil Code, so that payment to the member employee of
social security benefits would not wipe out or extinguish the employer's liability for the
injury or illness contracted by his employee in the course of or during the
employment. It must be realized that, under the Workmen's Compensation Act (or
the Civil Code, in a proper case), the employer is required to compensate the
employee for the sickness or injury arising in the course of the employment because
the industry is supposed to be responsible therefore; whereas, under the Social
Security Act, payment is being made because the hazard specifically covered by the
membership, and for which the employee had put up his own money, had taken
place. As this Court had said:

. . . To deny payment of social security benefits because the death or

injury or confinement is compensable under the Workmen's
Compensation Act would be to deprive the employees members of
the System of the statutory benefits bought and paid for by them,
since they contributed their money to the general common fund out of
which benefits are paid. In other words, the benefits provided for in
the Workmen's Compensation Act accrues to the employees
concerned due to the hazards involved in their employment and is
made a burden on the employment itself However, social security
benefits are paid to the System's members, by reason of their
 membership therein for which they contribute their money to a
general common fund . . . .

It may be added that whereas social security benefits are intended to

provide insurance or protection against the hazards or risks for which
they are established, e.g., disability, sickness, old age or death,
irrespective of whether they arose from or in the course of the
employment or not, the compensation receivable under the
Workmen's Compensation law is in the nature of indemnity for the
injury or damage suffered by the employee or his dependents on
account of the employment. (Rural Transit Employees Asso. vs.
Bachrach Trans. Co., 21 SCRA 1263 [19671])

And according to Justice Jesus G. Barrera in Benguet Consolidated, Inc. v. Social Security
System:" 10

The philosophy underlying the Workmen's Compensation Act is to make the payment
of the benefits provided for therein as a responsibility of the industry, on the ground
that it is industry which should bear the resulting death or injury to employees
engaged in the said industry. On the other hand, social security sickness benefits are
not paid as a burden on the industry, but are paid to the members of the System as a
matter of right, whenever the hazards provided for in the law occurs. To deny
payment of social security benefits because the death or injury or confinement is
compensable under the Workmen's Compensation Act would be to deprive the
employees-members of the System of the statutory benefits bought and paid for by
them, since they contribute their money to the general common fund out of which
benefits are paid. In other words, the benefits provided for in the Workmen's
Compensation Act accrues to the employees concerned, due to the hazards involved
in their employment and is made a burden on the employment itself However, social
security benefits are paid to the System's members, by reason of their membership
therein for which they contributed their money to a general common fund.

Famoso's widow and nine minor children have since his death sought to recover the just
recompense they need for their support. Instead of lending a sympathetic hand, the petitioner has
sought to frustrate their efforts and has even come to this Court to seek our assistance in defeating
their claim. That relief-and we are happy to say this must be withheld.

WHEREFORE, the appealed decision is AFFIRMED in toto. The petition is DENIED, with costs
against the petitioner.

SO ORDERED.

XXX RAKES VS ATLANTIC GULF CASE HERE XXX

G.R. No. L-4977 March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

W. H. Lawrence, for appellant.

W. L. Wright, for appellee.
CARSON, J.:

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric
light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the
Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be
reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the
island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent
some time in wandering about the company's premises. The visit was made on a Sunday afternoon,
and it does not appear that they saw or spoke to anyone after leaving the power house where they
had asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps
scattered on the ground. These caps are approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires by means of which it may be discharged
by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite,
and have in themselves a considerable explosive power. After some discussion as to the ownership
of the caps, and their right to take them, the boys picked up all they could find, hung them on stick,
of which each took end, and carried them home. After crossing the footbridge, they met a little girl
named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife,
and finding that it was filled with a yellowish substance they got matches, and David held the cap
while Manuel applied a lighted match to the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of
the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had
his hand burned and wounded, and David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the
surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the defendant's plant, detonating caps
of the same size and kind as those found by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also appears that at or about the time when these
caps were found, similarly caps were in use in the construction of an extension of defendant's street
car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to
have been lying for a considerable time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the defendant
company's premises, although it must be assumed that the company or its employees were aware of
the fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical
draftsman and continued in that employment for six months at a salary of P2.50 a day; and it
appears that he was a boy of more than average intelligence, taller and more mature both mentally
and physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them exposed on its premises at the
point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that
plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on
the McKinley extension of the defendant company's track; that some of these caps were used in
blasting a well on the company's premises a few months before the accident; that not far from the
place where the caps were found the company has a storehouse for the materials, supplies and so
forth, used by it in its operations as a street railway and a purveyor of electric light; and that the
place, in the neighborhood of which the caps were found, was being used by the company as a sort
of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the average citizen,
and under all the circumstances, and in the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on
defendant's premises fairly justifies the inference that the defendant company was either the owner
of the caps in question or had the caps under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectation that they would
be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they
being old and perhaps defective; and, however this may be, we are satisfied that the evidence is
sufficient to sustain a finding that the company or some of its employees either willfully or through an
oversight left them exposed at a point on its premises which the general public, including children at
play, where not prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively proven,
however, that while the workman employed in blasting the well was regularly employed by J. G.
White and Co., a firm of contractors, he did the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen, and there is no proof whatever in
the record that the blasting on the McKinley extension was done by independent contractors. Only
one witness testified upon this point, and while he stated that he understood that a part of this work
was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and
conditions of the alleged contract, or of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps were more or less extensively
employed on work done by the defendant company's directions and on its behalf, we think that the
company should have introduced the necessary evidence to support its contention if it wished to
avoid the not unreasonable inference that it was the owner of the material used in these operations
and that it was responsible for tortious or negligent acts of the agents employed therein, on the
ground that this work had been intrusted to independent contractors as to whose acts the
maxim respondent superior should not be applied. If the company did not in fact own or make use of
caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it
to prove that fact, and in the absence of such proof we think that the other evidence in the record
sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that
the caps found on its premises were its property, and were left where they were found by the
company or some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon
the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of
that code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.

ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.

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.

G.R. No. L-9308 December 23, 1914

JUAN BERNARDO, plaintiff-appellant,
vs.
M. B. LEGASPI, defendant-appellee.

Roman de Jesus for appellant.

No appearance for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the city of Manila dismissing the
complaint on the merits filed in an action to recover damages for injuries sustained by plaintiff's
automobile by reason of defendant's negligence in causing a collision between his automobile and
that of plaintiff. The court in its judgment also dismissed a cross-complaint filed by the defendant,
praying for damages against the plaintiff on the ground that the injuries sustained by the defendant's
automobile in the collision referred to, as well as those to plaintiff's machine, were caused by the
negligence of the plaintiff in handling his automobile.

The court found upon the evidence that both the plaintiff and the defendant were negligent in
handling their automobiles and that said negligence was of such a character and extent on the part
of both as to prevent either from recovering.1aw phil.net

Upon the facts, as they appear of record, the judgment must be affirmed, as the evidence clearly
supports the decision of the trial court. The law applicable to the facts also requires an affirmance of
the judgment appealed from. Where the plaintiff in a negligence action, by his own carelessness
contributes to the principal occurrence, that is, to the accident, as one of the determining causes
thereof, he cannot recover. This is equally true of the defendant; and as both of them, by their
negligent acts, contributed to the determining cause of the accident, neither can recover.

The judgment appealed from is affirmed, with costs against the appellant. itc-alf

RES IPSA LIQUITOR

XXX CALTEX CASE HERE XXX

XXX MAAO CASE HERE XXX

G.R. No. L-21749 September 29, 1967

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUZON STEVEDORING CORPORATION, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

H. San Luis and L.V. Simbulan for defendant-appellant.
REYES, J.B.L., J.:

The present case comes by direct appeal from a decision of the Court of First Instance of Manila
(Case No. 44572) adjudging the defendant-appellant, Luzon Stevedoring Corporation, liable in
damages to the plaintiff-appellee Republic of the Philippines.

In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring
Corporation was being towed down the Pasig river by tugboats "Bangus" and "Barbero"1 also
belonging to the same corporation, when the barge rammed against one of the wooden piles of the
Nagtahan bailey bridge, smashing the posts and causing the bridge to list. The river, at the time, was
swollen and the current swift, on account of the heavy downpour of Manila and the surrounding
provinces on August 15 and 16, 1960.

Sued by the Republic of the Philippines for actual and consequential damage caused by its
employees, amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon
Stevedoring Corporation disclaimed liability therefor, on the grounds that it had exercised due
diligence in the selection and supervision of its employees; that the damages to the bridge were
caused by force majeure; that plaintiff has no capacity to sue; and that the Nagtahan bailey bridge is
an obstruction to navigation.

After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable for the
damage caused by its employees and ordering it to pay to plaintiff the actual cost of the repair of the
Nagtahan bailey bridge which amounted to P192,561.72, with legal interest thereon from the date of
the filing of the complaint.

Defendant appealed directly to this Court assigning the following errors allegedly committed by the
court a quo, to wit:

I The lower court erred in not holding that the herein defendant-appellant had exercised
the diligence required of it in the selection and supervision of its personnel to prevent
damage or injury to others.1awphl.nt

II The lower court erred in not holding that the ramming of the Nagtahan bailey bridge by
barge L-1892 was caused by force majeure.

III The lower court erred in not holding that the Nagtahan bailey bridge is an obstruction, if
not a menace, to navigation in the Pasig river.

IV The lower court erred in not blaming the damage sustained by the Nagtahan bailey
bridge to the improper placement of the dolphins.

V The lower court erred in granting plaintiff's motion to adduce further evidence in chief
after it has rested its case.

VI The lower court erred in finding the plaintiff entitled to the amount of P192,561.72 for
damages which is clearly exorbitant and without any factual basis.

However, it must be recalled that the established rule in this jurisdiction is that when a party appeals
directly to the Supreme Court, and submits his case there for decision, he is deemed to have waived
the right to dispute any finding of fact made by the trial Court. The only questions that may be raised
are those of law (Savellano vs. Diaz, L-17441, July 31, 1963; Aballe vs. Santiago, L-16307, April 30,
1963; G.S.I.S. vs. Cloribel, L-22236, June 22, 1965). A converso, a party who resorts to the Court of
Appeals, and submits his case for decision there, is barred from contending later that his claim was
beyond the jurisdiction of the aforesaid Court. The reason is that a contrary rule would encourage
the undesirable practice of appellants' submitting their cases for decision to either court in
expectation of favorable judgment, but with intent of attacking its jurisdiction should the decision be
unfavorable (Tyson Tan, et al. vs. Filipinas Compaia de Seguros) et al., L-10096, Res. on Motion to
Reconsider, March 23, 1966). Consequently, we are limited in this appeal to the issues of law raised
in the appellant's brief.

Taking the aforesaid rules into account, it can be seen that the only reviewable issues in this appeal
are reduced to two:

1) Whether or not the collision of appellant's barge with the supports or piers of the Nagtahan
bridge was in law caused by fortuitous event or force majeure, and

2) Whether or not it was error for the Court to have permitted the plaintiff-appellee to
introduce additional evidence of damages after said party had rested its case.

As to the first question, considering that the Nagtahan bridge was an immovable and stationary
object and uncontrovertedly provided with adequate openings for the passage of water craft,
including barges like of appellant's, it is undeniable that the unusual event that the barge, exclusively
controlled by appellant, rammed the bridge supports raises a presumption of negligence on the part
of appellant or its employees manning the barge or the tugs that towed it. For in the ordinary course
of events, such a thing does not happen if proper care is used. In Anglo American Jurisprudence,
the inference arises by what is known as the "res ipsa loquitur" rule (Scott vs. London Docks Co., 2
H & C 596; San Juan Light & Transit Co. vs. Requena, 224 U.S. 89, 56 L. Ed., 680; Whitwell vs.
Wolf, 127 Minn. 529, 149 N.W. 299; Bryne vs. Great Atlantic & Pacific Tea Co., 269 Mass. 130; 168
N.E. 540; Gribsby vs. Smith, 146 S.W. 2d 719).

The appellant strongly stresses the precautions taken by it on the day in question: that it assigned
two of its most powerful tugboats to tow down river its barge L-1892; that it assigned to the task the
more competent and experienced among its patrons, had the towlines, engines and equipment
double-checked and inspected; that it instructed its patrons to take extra precautions; and concludes
that it had done all it was called to do, and that the accident, therefore, should be held due to force
majeure or fortuitous event.

These very precautions, however, completely destroy the appellant's defense. For caso
fortuito or force majeure(which in law are identical in so far as they exempt an obligor from
liability)2 by definition, are extraordinary events not foreseeable or avoidable, "events that could
not be foreseen, or which, though foreseen, were inevitable" (Art. 1174, Civ. Code of the
Philippines). It is, therefore, not enough that the event should not have been foreseen or anticipated,
as is commonly believed, but it must be one impossible to foresee or to avoid. The mere difficulty to
foresee the happening is not impossibility to foresee the same: "un hecho no constituye caso fortuito
por la sola circunstancia de que su existencia haga mas dificil o mas onerosa la accion diligente del
presento ofensor" (Peirano Facio, Responsibilidad Extra-contractual, p. 465; Mazeaud Trait de la
Responsibilite Civil, Vol. 2, sec. 1569). The very measures adopted by appellant prove that the
possibility of danger was not only foreseeable, but actually foreseen, and was not caso fortuito.

Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and appreciating the perils
posed by the swollen stream and its swift current, voluntarily entered into a situation involving
obvious danger; it therefore assured the risk, and can not shed responsibility merely because the
precautions it adopted turned out to be insufficient. Hence, the lower Court committed no error in
holding it negligent in not suspending operations and in holding it liable for the damages caused.

It avails the appellant naught to argue that the dolphins, like the bridge, were improperly located.
Even if true, these circumstances would merely emphasize the need of even higher degree of care
on appellant's part in the situation involved in the present case. The appellant, whose barges and
tugs travel up and down the river everyday, could not safely ignore the danger posed by these
allegedly improper constructions that had been erected, and in place, for years.

On the second point: appellant charges the lower court with having abused its discretion in the
admission of plaintiff's additional evidence after the latter had rested its case. There is an insinuation
that the delay was deliberate to enable the manipulation of evidence to prejudice defendant-
appellant.

We find no merit in the contention. Whether or not further evidence will be allowed after a party
offering the evidence has rested his case, lies within the sound discretion of the trial Judge, and this
discretion will not be reviewed except in clear case of abuse.3

In the present case, no abuse of that discretion is shown. What was allowed to be introduced, after
plaintiff had rested its evidence in chief, were vouchers and papers to support an item of P1,558.00
allegedly spent for the reinforcement of the panel of the bailey bridge, and which item already
appeared in Exhibit GG. Appellant, in fact, has no reason to charge the trial court of being unfair,
because it was also able to secure, upon written motion, a similar order dated November 24, 1962,
allowing reception of additional evidence for the said defendant-appellant.4

WHEREFORE, finding no error in the decision of the lower Court appealed from, the same is hereby
affirmed. Costs against the defendant-appellant.