KANG
open trench which was left uncovered because of
PLAINTIFF’S NEGLIGENCE IS THE PROXIMATE CAUSE
1. JUAN BERNARDO, plaintiff-appellant, vs. M.
B. LEGASPI, defendant-appellee.
FACTS: (the case itself is short)
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.
ISSUE: WON plaintiff may recover from the
negligence suit
RULING: NO
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.
2. PHILIPPINE LONG DISTANCE TELEPHONE CO.,
INC., petitioner, vs COURT OF APPEALS and
SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.
FACTS:
An action for damages by private respondent
spouses against petitioner Philippine Long Distance
Telephone Company (PLDT, for brevity) for the
injuries they sustained in the evening of July 30, 1968
when their jeep ran over a mound of earth and fell
into an open trench, an excavation allegedly
undertaken by PLDT for the installation of its
underground conduit system. The complaint alleged
that respondent Antonio Esteban failed to notice the
the creeping darkness and the lack of any warning
light or signs. As a result of the accident, respondent
Gloria Esteban allegedly sustained injuries on her
arms, legs and face, leaving a permanent scar on
her cheek, while the respondent husband suffered
cut lips. In addition, the windshield of the jeep was
shattered. 2
PLDT, in its answer, denies liability on the contention
that the injuries sustained by respondent spouses
were the result of their own negligence and that the
entity which should be held responsible, if at all, is L.R.
Barte and Company (Barte, for short), an
independent contractor which undertook the
construction of the manhole and the conduit
system.
On October 1, 1974, the trial court rendered a
decision in favor of private respondents.
From this decision PLDT appealed.
On May 11, 1981, respondent Court of Appeals
promulgated its resolution affirming in toto the
decision of the lower court dated October 1, 1974.
ISSUE: WON PLDT is liable
RULING: NO
We find no error in the findings of the respondent
court in its original decision that the accident which
befell private respondents was due to the lack of
diligence of respondent Antonio Esteban and was
not imputable to negligent omission on the part of
petitioner PLDT.
The findings clearly show that the negligence of
respondent Antonio Esteban was not only
contributory to his injuries and those of his wife but
goes to the very cause of the occurrence of the
accident, as one of its determining factors, and
thereby precludes their right to recover
damages. 30 The perils of the road were known to,
hence appreciated and assumed by, private
respondents. By exercising reasonable care and
prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged
negligence on the part of petitioner.
The presence of warning signs could not have
completely prevented the accident; the only
1 |Torts Part 3 Case Digests
purpose of said signs was to inform and warn the
public of the presence of excavations on the site.
The private respondents already knew of the
presence of said excavations. It was not the lack of
knowledge of these excavations which caused the
jeep of respondents to fall into the excavation but
the unexplained sudden swerving of the jeep from
the inside lane towards the accident mound. As
opined in some quarters, the omission to perform a
duty, such as the placing of warning signs on the site
of the excavation, constitutes the proximate cause
only when the doing of the said omitted act would
have prevented the injury. 31 It is basic that private
respondents cannot charge PLDT for their injuries
where their own failure to exercise due and
reasonable care was the cause thereof. It is both a
societal norm and necessity that one should exercise
a reasonable degree of caution for his own
protection. Furthermore, respondent Antonio
Esteban had the last clear chance or opportunity to
avoid the accident, notwithstanding the negligence
he imputes to petitioner PLDT. As a resident of Lacson
Street, he passed on that street almost everyday and
had knowledge of the presence and location of the
excavations there. It was his negligence that
exposed him and his wife to danger, hence he is
solely responsible for the consequences of his
imprudence.
CONTRIBUTORY NEGLIGENCE
3. M. H., RAKES, plaintiff-appellee, vs. THE
ATLANTIC, GULF AND PACIFIC
COMPANY, defendant-appellant.
FACTS:
The plaintiff, an employ of the defendant, was at
work transporting iron rails from a barge in the harbor
to the company's yard near the malecon in Manila.
Plaintiff claims that but one hand car was used in this
work. The defendant has proved that there were two
immediately following one another, upon which
were piled lengthwise seven rails, each weighing 560
pounds, so that the ends of the rails lay upon two
crosspieces or sills secured to the cars, but without
side pieces or guards to prevent them from slipping
off. According to the testimony of the plaintiff, the
men were either in the rear of the car or at its sides.
According to that defendant, some of them were
also in front, hauling by a rope. At a certain spot at
or near the water's edge the track sagged, the tie
broke, the car either canted(leaned) or upset, the
rails slid off and caught the plaintiff, breaking his leg,
which was afterwards amputated at about the
knee.
This first point for the plaintiff to establish was that the
accident happened through the negligence of the
defendant. The detailed description by the
defendant's witnesses of the construction and
quality of the track proves that if was up to the
general stranded of tramways of that character.
It was admitted that there were no side pieces or
guards on the car;
The cause of the sagging of the tracks and the
breaking of the tie, which was the immediate
occasion of the accident, is not clear in the
evidence, but is found by the trial court and is
admitted in the briefs and in the argument to have
been the dislodging of the crosspiece or piling under
the stringer by the water of the bay raised by a
recent typhoon. The superintendent of the company
attributed it to the giving way of the block laid in the
sand. No effort was made to repair the injury at the
time of the occurrence. According to plaintiffs
witnesses, a depression of the track, varying from
one half inch to one inch and a half, was therafter
apparent to the eye, and a fellow workman of the
plaintiff swears that the day before the accident he
called the attention of McKenna, the foreman, to it
and asked by simply straightening out the
crosspiece, resetting the block under the stringer
and renewing the tie, but otherwise leaving the very
same timbers as before. It has not proven that the
company inspected the track after the typhoon or
had any proper system of inspection.
In order to charge the defendant with negligence, it
was necessary to show a breach of duty on its part
in failing either to properly secure the load on iron to
vehicles transporting it, or to skillfully build the
tramway or to maintain it in proper condition, or to
vigilantly inspect and repair the roadway as soon as
the depression in it became visible. It is upon the
failure of the defendant to repair the weakened
track, after notice of its condition, that the judge
below based his judgment.
2 |Torts Part 3 Case Digests
ISSUE: WON plaintiff can wholly recover for
damages sustained by the accident
RULING: NO
The most controverted question in the case is that of
the negligence of the plaintiff, contributing to the
accident, to what extent it existed in fact and what
legal effect is to be given it. In two particulars is he
charged with carelessness:
necessary for the employees moving it to get hold
upon it as best they could, there is no specific finding
upon the instruction given by the defendant to its
employees to walk only upon the planks, nor upon
the necessity of the plaintiff putting himself upon the
ties at the side in order to get hold upon the car.
Therefore the findings of the judge below leave the
conduct of the plaintiff in walking along the side of
the loaded car, upon the open ties, over the
depressed track, free to our inquiry.

First. That having noticed the depression in the track While the plaintiff and his witnesses swear that not
he continued his work; and only were they not forbidden to proceed in this way,
but were expressly directed by the foreman to do so,
both the officers of the company and three of the
Second. That he walked on the ends of the ties at
workmen testify that there was a general prohibition
the side of the car instead of along the boards, either
frequently made known to all the gang against
before or behind it.
walking by the side of the car, and the foreman
swears that he repeated the prohibition before the
As to the first point, the depression in the track night
starting of this particular load. On this contradiction
indicate either a serious or a rival difficulty. There is
of proof we think that the preponderance is in favor
nothing in the evidence to show that the plaintiff did
of the defendant's contention to the extent of the
or could see the displaced timber underneath the
general order being made known to the workmen. If
sleeper. The claim that he must have done so is a
so, the disobedience of the plaintiff in placing himself
conclusion drawn from what is assumed to have
in danger contributed in some degree to the injury
been a probable condition of things not before us,
as a proximate, although not as its primary cause.
rather than a fair inference from the testimony. While
the method of construction may have been known
Difficulty seems to be apprehended in deciding
to the men who had helped build the road, it was
which acts of the injured party shall be considered
otherwise with the plaintiff who had worked at this
immediate causes of the accident. The test is simple.
job less than two days. A man may easily walk along
Distinction must be between the accident and the
a railway without perceiving a displacement of the
injury, between the event itself, without which there
underlying timbers. The foreman testified that he
could have been no accident, and those acts of the
knew the state of the track on the day of the
victim not entering into it, independent of it, but
accident and that it was then in good condition,
contributing under review was the displacement of
and one Danridge, a witness for the defendant,
the crosspiece or the failure to replace it. this
working on the same job, swore that he never
produced the event giving occasion for damages —
noticed the depression in the track and never saw
that is, the shinking of the track and the sliding of the
any bad place in it. The sagging of the track this
iron rails. To this event, the act of the plaintiff in
plaintiff did perceive, but that was reported in his
walking by the side of the car did not contribute,
hearing to the foreman who neither promised nor
although it was an element of the damage which
refused to repair it. His lack of caution in continuing
came to himself. Had the crosspiece been out of
at his work after noticing the slight depression of the
place wholly or partly thorough his act of omission of
rail was not of so gross a nature as to constitute
duty, the last would have been one of the
negligence, barring his recovery under the severe
determining causes of the event or accident, for
American rule.
which he would have been responsible. Where he
contributes to the principal occurrence, as one of its
In respect of the second charge of negligence
determining factors, he can not recover. Where, in
against the plaintiff, the judgment below is not so
conjunction with the occurrence, he contributes
specific. While the judge remarks that the evidence
only to his own injury, he may recover the amount
does not justify the finding that the car was pulled by
that the defendant responsible for the event should
means of a rope attached to the front end or to the
pay for such injury, less a sum deemed a suitable
rails upon it, and further that the circumstances in
equivalent for his own imprudence.
evidence make it clear that the persons necessary
to operate the car could not walk upon the plank
between the rails and that, therefore, it was

3 |Torts Part 3 Case Digests

(Note: the plaintiff was first awarded 5,000 pesos connection between the company’s negligence
then reduced to 2,500 for contributory negligence.) and the injuries sustained by Taylor is absent. It is in
fact the direct acts of Taylor which led to the
explosion of the caps as he even, in various
experiments and in multiple attempts, tried to
PLAINTIFF’S NEGLIGENCE IS THE PROXIMATE CAUSE explode the caps. It is from said acts that led to the
explosion and hence the injuries.
MARK
Taylor at the time of the accident was well-grown
4. TAYLOR VS MANILA ELECTRIC
youth of 15, more mature both mentally and
physically than the average boy of his age; he had
FACTS:
been to sea as a cabin boy; was able to earn P2.50
a day as a mechanical draftsman thirty days after
David Taylor was a 15 year old boy who spent time
the injury was incurred; and the record discloses
as a cabin boy at sea. He was also able to learn
throughout that he was exceptionally well qualified
some principles of mechanical engineering and
to take care. The evidence of record leaves no
mechanical drawing from his father who was a
room for doubt that he well knew the explosive
mechanical engineer. He was also employed as a
character of the cap with which he was amusing
mechanical draftsman earning P2.50/day – all said,
himself. The series of experiments made by him in his
Taylor was mature well beyond his age.
attempt to produce an explosion admit of no other
explanation. His attempt to discharge the cap by
One day in 1905, he and another boy entered into
the use of electricity, followed by his efforts to
the premises of Manila Electric power plant where
explode it with a stone or a hammer, and the final
they found 20-30 blasting caps which they took
success of his endeavors brought about by the
home. In an effort to explode the said caps, Taylor
applications of a match to the contents of the cap,
experimented until he succeeded in opening the
show clearly that he knew what he was about. Nor
caps and then he lighted it using a match which
can there be any reasonable doubt that he had
resulted to the explosion of the caps causing severe
reason to anticipate that the explosion might be
injuries to his companion and to Taylor losing one
dangerous.
eye.

Taylor sued Manila Electric alleging that because the

5. CADIENTE VS MACAS
company left the caps exposed to children, they are
liable for damages due to the company’s
FACTS:
negligence.
Bithuel Macas while standing on the shoulder of the
ISSUE: WON Manila Electric was negligent as to be
road was bumped and run over by a Ford Fiera,
liable for damages
driven by Cimafranca which resulted to the
amputation of both legs up to the groins of the
RULING: NO
victim. The Ford Fiera was registered in the name of
Atty. Cadiente, who claimed that when the
The elements of quasi delict are as follows:
accident happened, he was no longer the owner of
the Ford Fiera since he already sold it to Engr. Jalipa
1. Damages to the plaintiff.
on March 28, 1994.
2. Negligence by act or omission of which
The victim's father, filed a complaint for torts and
defendant personally, or some person for
damages against Cimafranca and Cadiente before
whose acts it must respond, was guilty.
the RTC of Davao City. Cadiente later filed a third-
party complaint against Jalipa. Jalipa, however,
3. The connection of cause and effect
filed a fourth-party complaint against Abubakar, to
between the negligence and the damage.
whom Jalipa allegedly sold the vehicle on June 20,
1994.
In the case at bar, it is true that Manila Electric has
been negligent in disposing off the caps which they
The Petitioners also contends that the victim's
used for the power plant, and that said caps
negligence contributed to his own mishap. They
caused damages to Taylor. However, the causal
theorizes that if witness Palero, who was only two and
4 |Torts Part 3 Case Digests
a half meters away from the victim, was not hit by
the Ford Fiera, then the victim must have been so
negligent as to be bumped and run over by the said
vehicle.
The RTC rendered in favor of the plaintiff declaring
the Petitioners jointly and severally liable for
damages to the plaintiff for their own negligence.
ISSUE:
1. WoN there was contributory negligence on
the part of the victim;
2. WoN the petitioner and third-party
defendant Jalipa are jointly and severally
liable to the victim.
RULING:
1. NO
Records show that when the accident happened,
the victim was standing on the shoulder, which was
the uncemented portion of the highway. As noted
by the trial court, the shoulder was intended for
pedestrian use alone. Only stationary vehicles, such
as those loading or unloading passengers may use
the shoulder. Running vehicles are not supposed to
pass through the said uncemented portion of the
highway. However, the Ford Fiera in this case,
without so much as slowing down, took off from the
cemented part of the highway, inexplicably
swerved to the shoulder, and recklessly bumped and
ran over an innocent victim. The victim was just
where he should be when the unfortunate event
transpired.
2. NO
This Court has recently reiterated in PCI Leasing and
Finance, Inc. v. UCPB General Insurance Co.,
Inc., that the registered owner of any vehicle, even
if he had already sold it to someone else, is primarily
responsible to the public for whatever damage or
injury the vehicle may cause. We explained,
…Were a registered owner allowed to evade
responsibility by proving who the supposed
transferee or owner is, it would be easy for him, by
collusion with others or otherwise, to escape said
responsibility and transfer the same to an indefinite
person, or to one who possesses no property with
which to respond financially for the damage or injury
done. A victim of recklessness on the public
highways is usually without means to discover or
identify the person actually causing the injury or
damage. He has no means other than by a recourse
to the registration in the Motor Vehicles Office to
determine who is the owner. The protection that the
law aims to extend to him would become illusory
were the registered owner given the opportunity to
escape liability by disproving his ownership.
In the case of Villanueva v. Domingo, we said that
the policy behind vehicle registration is the easy
identification of the owner who can be held
responsible in case of accident, damage or injury
caused by the vehicle. This is so as not to
inconvenience or prejudice a third party injured by
one whose identity cannot be secured.
LIMITATIONS ON CONTRIBUTORY NEGLIGENCE
LAST CLEAR CHANCE
6. LAPANDAY VS ANGALA
FACTS:
A Datsun crewcab driven by Deocampo bumped
into a 1958 Chevy pick-up owned by respondent
and driven by Borres. Lapanday Agricultural and
Development Corporation (LADECO) owned the
crewcab which was assigned to its manager
Mendez. Deocampo was the driver and bodyguard
of Mendez. Both vehicles were running along Rafael
Castillo St., Agdao, Davao City heading north
towards Lanang, Davao City. The left door, front left
fender, and part of the front bumper of the pick-up
were damaged.
Respondent demanded for payment of damages
he incurred to no avail. Thus, respondent filed the
case against LADECO, Berenguel, and Deocampo.
For their part, Petitioners allege that Borres violated
Section 45(b) of RA 4136 and it was his recklessness
that was the proximate cause of the accident.
Section 45(b) of RA 4136 states:
Sec. 45. Turning at intersections. x x x
(b) The driver of a vehicle intending to turn to the left
shall approach such intersection in the lane for traffic
to the right of and nearest to the center line of the
highway, and, in turning, shall pass to the left of the
center of the intersection, except that, upon
5 |Torts Part 3 Case Digests
highways laned for traffic and upon one-way
highways, a left turn shall be made from the left lane
of traffic in the direction in which the vehicle is
proceeding.
They further allege that since Borres was violating a
traffic rule at the time of the accident, respondent
and Borres were the parties at fault. Petitioners cite
Article 2185 of the Civil Code, thus:
Art. 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has
been negligent if at the time of the mishap, he was
violating any traffic regulation.
RTC and CA ruled in favor of Angala upon finding
that the crewcab was running at unusual speed
because it only managed to stop at 21 meters after
hitting the pick-up.
ISSUE: WON the doctrine of last clear chance is
applicable.
RULING: YES
Since both parties are at fault in this case, the
doctrine of last clear chance applies.
The doctrine of last clear chance states that where
both parties are negligent but the negligent act of
one is appreciably later than that of the other, or
where it is impossible to determine whose fault or
negligence caused the loss, the one who had the
last clear opportunity to avoid the loss but failed to
do so is chargeable with the loss. In this case,
Deocampo had the last clear chance to avoid the
collision. Since Deocampo was driving the rear
vehicle, he had full control of the situation since he
was in a position to observe the vehicle in front of
him. Deocampo had the responsibility of avoiding
bumping the vehicle in front of him. A U-turn is done
at a much slower speed to avoid skidding and
overturning, compared to running straight ahead.
Deocampo could have avoided the vehicle if he
was not driving very fast while following the pick-up.
Deocampo was not only driving fast, he also
admitted that he did not step on the brakes even
upon seeing the pick-up. He only stepped on the
brakes after the collision.
SAMBOY
ATTRACTIVE NUISANCE
7. HIDALGO VS BALANDAN
FACTS:
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
Instancetook the view that Hidaldo 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).
ISSUE: Now, is a swimming pool or water tank an
instrumentality or appliance likely to attract the little
6 |Torts Part 3 Case Digests
children in play? In other words is the body of water
an attractive nuisance?
RULING: NO
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 Hidalgo's tanks are not classified as
attractive nuisance, the question whether Hidalgo
had taken reasonable precautions becomes
immaterial. And the other issue submitted by Hidalgo
— 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.
Hidalgo Enterprises, Inc. is absolved from liability.
ASSUMPTION OF RISK
8. AFIALDA VS HISOLE
FACTS:
This is an action for damages arising from injury
caused by an animal.
The now deceased, Loreto Afialda, was employed
by the defendant spouses as caretaker of their
carabaos at a fixed compensation; that while
tending the animals he was, on March 21, 1947,
gored by one of them and later died as a
consequence of his injuries; that the mishap was due
neither to his own fault nor to force majeure; and
that plaintiff is his elder sister and heir depending
upon him for support.
Plaintiff seeks to hold defendants liable under article
1905 of the Civil Code, which reads:
The possessor of an animal, or the one who uses the
same, is liable for any damages it may cause, even
if such animal should escape from him or stray away.
This liability shall cease only in case, the damage
should arise from force majeure or from the fault of
the person who may have suffered it.
The lower court took the view that under the above-
quoted provision of the Civil Code, the owner of an
animal is answerable only for damages caused to a
stranger, and that for damage caused to the
caretaker of the animal the owner would be liable
only if he had been negligent or at fault under article
1902 of the same code. Claiming that the lower
court was in error, counsel for plaintiff contends that
the article 1905 does not distinguish between
damage caused to the caretaker and makes the
owner liable whether or not he has been negligent
or at fault.
ISSUE: WON the owner of the animal is liable when
damage is caused to its caretaker
RULING: NO
This opinion, however, appears to have been
rendered in a case where an animal caused injury to
a stranger or third person. It is therefore no authority
7 |Torts Part 3 Case Digests
for a case like the present where the person injured
was the caretaker of the animal.
The distinction is important as to whether an animal
caused injury to a stranger or to the caretaker. For
the statute names the possessor or user of the
animal as the person liable for "any damages it may
cause," and this for the obvious reason that the
possessor or user has the custody and control of the
animal and is therefore the one in a position to
prevent it from causing damage.
In the present case, the animal was in custody and
under the control of the caretaker, who was paid for
his work as such. Obviously, it was the caretaker's
business to try to prevent the animal from causing
injury or damage to anyone, including himself. And
being injured by the animal under those
circumstances, was one of the risks of the
occupation which he had voluntarily assumed and
for which he must take the consequences.
In a decision of the Spanish Supreme Court, cited by
Manresa in his Commentaries (Vol. 12, p. 578), the
death of an employee who was bitten by a feline
which his master had asked him to take to his
establishment was by said tribunal declared to be "a
veritable accident of labor" which should come
under the labor laws rather than under article 1905
of the Civil Code. The present action, however, is not
brought under the Workmen's Compensation Act,
there being no allegation that, among other things,
defendant's business, whatever that might be, had
a gross income of P20,000. As already stated,
defendant's liability is made to rest on article 1905 of
the Civil Code. But action under that article is not
tenable for the reasons already stated. On the other
hand, if action is to be based on article 1902 of the
Civil Code, it is essential that there be fault or
negligence on the part of the defendants as owners
of the animal that caused the damage. But the
complaint contains no allegation on those points.
LAST CLEAR CHANCE
9. MR. AND MRS. AMADOR C. ONG, vs.
METROPOLITAN WATER DISTRICT
FACTS:
Defendant owns and operates three recreational
swimming pools at its Balara filters, Diliman, Quezon
City, to which people are invited and for which a
nominal fee of P0.50 for adults and P0.20 for children
is charged. The main pool it between two small pools
of oval shape known as the "Wading pool" and the
"Beginners Pool." There are diving boards in the big
pools and the depths of the water at different parts
are indicated by appropriate marks on the wall. The
care and supervision of the pools and the users
thereof is entrusted to a recreational section
composed of Simeon Chongco as chief, Armando
Rule, a male nurse, and six lifeguards who had taken
the life-saving course given by the Philippine Red
Cross at the YMCA in Manila. For the safety of its
patrons, defendant has provided the pools with a
ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is
in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a
conspicuous place certain rules and regulations
governing the use of the pools, one of which
prohibits the swimming in the pool alone or without
any attendant. Although defendant does not
maintain a full-time physician in the swimming pool
compound, it has however a nurse and a sanitary
inspector ready to administer injections or operate
the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student
and boy scout, and his brothers Ruben and Eusebio,
went to defendant's swimming pools. This was not
the first time that the three brothers had gone to said
natatorium for they had already been there four or
five times before. They arrived at the natatorium at
about 1:45 p.m. After paying the requisite admission
fee, they immediately went to one of the small pools
where the water was shallow. At about 4:35 p.m.,
Dominador Ong told his brothers that he was going
to the locker room in an adjoining building to drink a
bottle of coke. Upon hearing this, Ruben and
Eusebio went to the bigger pool leaving Dominador
in the small pool and so they did not see the latter
when he left the pool to get a bottle of coke. In that
afternoon, there were two lifeguards on duty in the
pool compound, namely, Manuel Abaño and Mario
Villanueva. The tour of duty of Abaño was from 8:00
to 12:00 in the morning and from 2:00 to 6:00 in the
afternoon, and of Villanueva from 7:30 to 11:30 a.m.
and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that
afternoon, there were about twenty bathers inside
the pool area and Manuel Abaño was going around
the pools to observe the bathers in compliance with
the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in
the pool area informed a bather by the name of
Andres Hagad, Jr., that somebody was swimming
under water for quite a long time. Another boy
informed lifeguard Manuel Abaño of the same
8 |Torts Part 3 Case Digests
happening and Abaño immediately jumped into the
big swimming pool and retrieved the apparently
lifeless body of Dominador Ong from the bottom. The
body was placed at the edge of the pool and
Abaño immediately applied manual artificial
respiration. Soon after, male nurse Armando Rule
came to render assistance, followed by sanitary
inspector Iluminado Vicente who, after being called
by phone from the clinic by one of the security
guards, boarded a jeep carrying with him the
resuscitator and a medicine kit, and upon arriving he
injected the boy with camphorated oil. After the
injection, Vicente left on a jeep in order to fetch Dr.
Ayuyao from the University of the Philippines.
Meanwhile, Abaño continued the artificial manual
respiration, and when this failed to revive him, they
applied the resuscitator until the two oxygen tanks
were exhausted. Not long thereafter, Dr. Ayuyao
arrived with another resuscitator, but the same
became of no use because he found the boy
already dead. The doctor ordered that the body be
taken to the clinic.
ISSUE: WON the death of minor Dominador Ong can
be attributed to the negligence of defendant and/or
its employees so as to entitle plaintiffs to recover
damages
RULING: NO
There is sufficient evidence to show that appellee
has taken all necessary precautions to avoid danger
to the lives of its patrons or prevent accident which
may cause their death. Thus, it has been shown that
the swimming pools of appellee are provided with a
ring buoy, toy roof, towing line, oxygen resuscitator
and a first aid medicine kit. The bottom of the pools
is painted with black colors so as to insure clear
visibility. There is on display in a conspicuous place
within the area certain rules and regulations
governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a
course for that purpose and were issued certificates
of proficiency. These lifeguards work on schedule
prepared by their chief and arranged in such a way
as to have two guards at a time on duty to look after
the safety of the bathers. There is a male nurse and
a sanitary inspector with a clinic provided with
oxygen resuscitator. And there are security guards
who are available always in case of emergency.
The record also shows that when the body of minor
Ong was retrieved from the bottom of the pool, the
employees of appellee did everything possible to
bring him back to life. Thus, after he was placed at
the edge of the pool, lifeguard Abaño immediately
gave him manual artificial respiration. Soon
thereafter, nurse Armando Rule arrived, followed by
sanitary inspector Iluminado Vicente who brought
with him an oxygen resuscitator. When they found
that the pulse of the boy was abnormal, the
inspector immediately injected him with
camphorated oil. When the manual artificial
respiration proved ineffective they applied the
oxygen resuscitator until its contents were
exhausted. And while all these efforts were being
made, they sent for Dr. Ayuyao who however came
late because upon examining the body he found
him to be already dead. All of the foregoing shows
that appellee has done what is humanly possible
under the circumstances to restore life to minor Ong
and for that reason it is unfair to hold it liable for his
death.
Sensing that their former theory as regards the
liability of appellee may not be of much help,
appellants now switch to the theory that even if it be
assumed that the deceased is partly to be blamed
for the unfortunate incident, still appellee may be
held liable under the doctrine of "last clear chance"
for the reason that, having the last opportunity to
save the victim, it failed to do so.
We do not see how this doctrine may apply
considering that the record does not show how
minor Ong came into the big swimming pool. The
only thing the record discloses is that minor Ong
informed his elder brothers that he was going to the
locker room to drink a bottle of coke but that from
that time on nobody knew what happened to him
until his lifeless body was retrieved. The doctrine of
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. Or, "As the
doctrine usually is stated, a person who has the last
clear chance or opportunity of avoiding an
accident, notwithstanding the negligent acts of his
opponent or the negligence of a third person which
is imputed to his opponent, is considered in law solely
responsible for the consequences of the accident."
Since it is not known how minor Ong came into the
big swimming pool and it being apparent that he
went there without any companion in violation of
one of the regulations of appellee as regards the use
of the pools, and it appearing that lifeguard Abano
to responded to the call for help as soon as his
attention was called to it and immediately after
9 |Torts Part 3 Case Digests
retrieving the body all efforts at the disposal of
appellee had been put into play in order to bring him
back to life, it is clear that there is no room for the
application of the doctrine now invoked by
appellants to impute liability to appellee..
The last clear chance doctrine can never apply
where the party charged is required to act
instantaneously, and if the injury cannot be
avoided by the application of all means at hand
after the peril is or should have been discovered;
at least in cases in which any previous negligence
of the party charged cannot be said to have
contributed to the injury.
Before closing, we wish to quote the following
observation of the trial court, which we find
supported by the evidence: "There is (also) a strong
suggestion coming from the expert evidence
presented by both parties that Dominador Ong
might have dived where the water was only 5.5 feet
deep, and in so doing he might have hit or bumped
his forehead against the bottom of the pool, as a
consequence of which he was stunned, and which
to his drowning. As a boy scout he must have
received instructions in swimming. He knew, or have
known that it was dangerous for him to dive in that
part of the pool."
KARLO
10. GLAN PEOPLES LUMBER VS IAC
FACTS:
Engineer Orlando T. Calibo, Agripino Roranes, and
Maximo Patos were on the jeep owned by the
Bacnotan Consolidated Industries, Inc., with Calibo
at the wheel, as it approached from the South
Lizada Bridge going towards the direction of Davao
City at about 1:45 in the afternoon of July 4,1979. At
about that time, the cargo track, loaded with
cement bags, GI sheets, plywood, driven by
defendant Paul Zacarias y Infants, coming from the
opposite direction of Davao City and bound for
Glan, South Cotabato, had just crossed said bridge.
At about 59 yards after crossing the bridge, the
cargo truck and the jeep collided as a
consequence of which Engineer Calibo died while
Roranes and Patos sustained physical injuries.
Zacarias was unhurt. As a result of the impact, the left
side of the truck was slightly damaged while the left
side of the jeep, including its fender and hood, was
extensively damaged. After the impact, the jeep fell
and rested on its right side on the asphalted road a
few meters to the rear of the truck, while the truck
stopped on its wheels on the road.
On November 27, 1979, the instant case for
damages was filed by the surviving spouse and
children of the late Engineer Calibo who are
residents of Tagbilaran City against the driver and
owners of the cargo truck.
ISSUE: WON Calibo is negligent due to the said
accident? WON the doctrine of last clear chance is
applicable in the instant case?
RULING:
1. YES. The SC found Calibo negligent because of the
following it is alleged that at the time of the collision,
the truck was occupying 25 cm of the jeep’s lane.
However it was found out that the center stripe of
the road is misaligned and with the correct
calculation of the width of the road, the truck on still
on its proper lane and it was actually the jeep who is
intruding the truck’s lane.
Nor was the Appellate Court correct in finding that
Paulino Zacarias had acted negligently in applying
his brakes instead of getting back inside his lane
upon qqqespying the approaching jeep. Being well
within his own lane, as has already been explained,
he had no duty to swerve out of the jeep's way as
said Court would have had him do. And even
supposing that he was in fact partly inside the
opposite lane, coming to a full stop with the jeep still
thirty (30) meters away cannot be considered an
unsafe or imprudent action, there also being
uncontradicted evidence that the jeep was
"zigzagging” and hence no way of telling in which
direction it would go as it approached the truck.
Also clearly erroneous is the finding of the
Intermediate Appellate Court that Zacarias had no
driver's license at the time. The traffic accident report
attests to the proven fact that Zacarias voluntarily
surrendered to the investigating officers his driver's
license, valid for 1979, that had been renewed just
the day before the accident, on July 3, 1979. The
Court was apparently misled by the circumstance
that when said driver was first asked to show his
license by the investigators at the scene of the
collision, he had first inadvertently produced the
license of a fellow driver, Leonardo Baricuatro, who
had left said license in Davao City and had asked
Zacarias to bring it back to him in Glan, Cotabato.
10 |Torts Part 3 Case Digests
The evidence not only acquits Zacarias of any
negligence in the matter; there are also quite a few
significant indicators that it was rather Engineer
Calibo's negligence that was the proximate cause
of the accident. Zacarias had told Patrolman
Dimaano at the scene of the collision and later
confirmed in his written statement at the police
headquarters that the jeep had been "zigzagging,"
which is to say that it was travelling or being driven
erratically at the time. The other investigator,
Patrolman Jose Esparcia, also testified that
eyewitnesses to the accident had remarked on the
jeep's "zigzagging." There is moreover more than a
suggestion that Calibo had been drinking shortly
before the accident. The decision of the Trial Court
adverts to further testimony of Esparcia to the effect
that three of Calibo's companions at the beach
party he was driving home from when the collision
occurred, who, having left ahead of him went to the
scene when they heard about the accident, had
said that there had been a drinking spree at the
party and, referring to Calibo, had remarked: "Sabi
na huag nang mag drive . . . . pumipilit," (loosely
translated, "He was advised not to drive, but he
insisted.")
2. Both drivers, as the Appellate Court found, had
had a full view of each other’s vehicle from a
distance of 150 meters. The truck had been brought
to a stop while the jeep was still thirty meters
away. From these facts the logical conclusion
emerges that the driver of the jeep had what judicial
doctrine has appropriately called the last clear
chance to avoid the accident, while still at that
distance of thirty meters from the truck, by stopping
in his turn or swerving his jeep away from the truck,
either of which he had sufficient time to do while
running at a speed of only thirty kilometers per hour.
In those circumstances, his duty was to seize that
opportunity of avoidance, not merely rely on a
supposed right to expect the truck to swerve and
leave him a clear path.
Since said ruling clearly applies to exonerate
petitioner Zacarias and his employer (and co-
petitioner) George Lim, an inquiry into whether or not
the evidence supports the latter's additional defense
of due diligence in the selection and supervision of
said driver is no longer necessary and wig not be
undertaken. The fact is that there is such evidence in
the record which has not been controverted.
It must be pointed out, however, that the
Intermediate Appellate Court also seriously erred in
holding the petitioners Pablo S. Agad and Felix Lim
solidarily liable for the damages awarded in its
appealed decision, as alleged owners, with
petitioner George Lim, of Glan People's Lumber and
Hardware, employer of petitioner Zacarias. This
manifestly disregarded, not only the certificate of
registration issued by the Bureau of Domestic Trade
identifying Glan People's Lumber and Hardware as a
business name registered by George Lim, but also
unimpugned allegations into the petitioners' answer
to the complaint that Pablo S. Agad was only an
employee of George Lim and that Felix Lim, then a
child of only eight (8) years, was in no way
connected with the business.
In conclusion, it must also be stated that there is no
doubt of this Court's power to review the assailed
decision of the Intermediate Appellate Court under
the authority of precedents recognizing exceptions
to the familiar rule binding it to observe and respect
the latter's findings of fact. Many of those exceptions
may be cited to support the review here
undertaken, but only the most obvious — that said
findings directly conflict with those of the Trial Court
— will suffice. In the opinion of this Court and after a
careful review of the record, the evidence singularly
fails to support the findings of the Intermediate
Appellate Court which, for all that appears, seem to
have been prompted rather by sympathy for the
heirs of the deceased Engineer Calibo than by an
objective appraisal of the proofs and a correct
application of the law to the established facts.
Compassion for the plight of those whom an
accident has robbed of the love and support of a
husband and father is an entirely natural and
understandable sentiment. It should not, however,
be allowed to stand in the way of, much less to
influence, a just verdict in a suit at law.
11. PANTRANCO VS BAESA
FACTS:
At about 7:00 o’clock in the morning of June 12,
1981, the spouses Ceasar and Marilyn Baesa and
their children Harold Jim, Marcelino and Maricar,
together with spouses David Ico and Fe O. Ico with
their son Erwin Ico and seven other persons, were
aboard a passenger jeepney on their way to a
picnic at Malalam River, Ilagan, Isabela, to
celebrate the fifth wedding anniversary of Ceasar
and Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in
the passenger jeepney driven by David Ico, who was
11 |Torts Part 3 Case Digests
also the registered owner thereof. From Ilagan,
Isabela, they proceeded to Barrio Capayacan to
deliver some viands to one Mrs. Bascos and
thenceforth to San Felipe, taking the highway going
to Malalam River. Upon reaching the highway, the
jeepney turned right and proceeded to Malalam
River at a speed of about 20 kph. While they were
proceeding towards Malalam River, a speeding
PANTRANCO bus from Aparri, on its regular route to
Manila, encroached on the jeepney’s lane while
negotiating a curve, and collided with it.
As a result of the accident David Ico, spouses Ceasar
Baesa and Marilyn Baesa and their children, Harold
Jim and Marcelino Baesa, died while the rest of the
passengers suffered injuries. The jeepney was
extensively damaged. After the accident the driver
of the PANTRANCO Bus, Ambrosio Ramirez, boarded
a car and proceeded to Santiago, Isabela. From
that time on up to the present, Ramirez has never
been seen and has apparently remained in hiding.
All the victims and/or their surviving heirs except
herein private respondents settled the case
amicably under the "No Fault" insurance coverage
of PANTRANCO.
Maricar Baesa through her guardian Francisca O.
Bascos and Fe O. Ico for herself and for her minor
children, filed separate actions for damages arising
from quasi-delict against PANTRANCO, respectively
docketed as Civil Case No. 561-R and 589-R of the
Court of First Instance of Pangasinan.
In its answer, PANTRANCO, aside from pointing to the
late David Ico’s alleged negligence as the
proximate cause of the accident, invoked the
defense of due diligence in the selection and
supervision of its driver, Ambrosio Ramirez.
Further, petitioner faulted the appellate court for not
applying the doctrine of the "last clear chance"
against the jeepney driver. Petitioner claims that
under the circumstances of the case, it was the
driver of the passenger jeepney who had the last
clear chance to avoid the collision and was
therefore negligent in failing to utilize with
reasonable care and competence his then existing
opportunity to avoid the harm.
ISSUE: WON the doctrine of last clear chance is
applicable in the instant case?
RULING: NO.
The doctrine of "last clear chance" finds no
application in this case. For the doctrine to be
applicable, it is necessary to show that the person
who allegedly had the last opportunity to avert the
accident was aware of the existence of the peril or
should, with exercise of due care, have been aware
of it. One cannot be expected to avoid an accident
or injury if he does not know or could not have known
the existence of the peril.
In this case, there is nothing to show that the jeepney
driver David Ico knew of the impending danger.
When he saw at a distance that the approaching
bus was encroaching on his lane, he did not
immediately swerve the jeepney to the dirt shoulder
on his right since he must have assumed that the bus
driver will return the bus to its own lane upon seeing
the jeepney approaching from the opposite
direction. As held by this Court in the case of Vda.
De Bonifacio v. BLTB, G.R. No. L-26810, August 31,
1970, 34 SCRA 618, a motorist who is properly
proceeding on his own side of the highway is
generally entitled to assume that an approaching
vehicle coming towards him on the wrong side, will
return to his proper lane of traffic. There was nothing
to indicate to David Ico that the bus could not return
to its own lane or was prevented from returning to
the proper lane by anything beyond the control of
its driver. Leo Marantan, an alternate driver of the
Pantranco bus who was seated beside the driver
Ramirez at the time of the accident, testified that
Ramirez had no choice but to swerve the steering
wheel to the left and encroach on the jeepney’s
lane because there was a steep precipice on the
right [CA Decision, p. 2; Rollo, p. 45]. However, this is
belied by the evidence on record which clearly
shows that there was enough space to swerve the
bus back to its own lane without any danger [CA
Decision, p. 7; Rollo, p. 50].
Moreover, both the trial court and the Court of
Appeals found that at the time of the accident the
Pantranco bus was speeding towards Manila [CA
Decision, p. 2; Rollo, p. 45]. By the time David Ico
must have realized that the bus was not returning to
its own lane, it was already too late to swerve the
jeepney to his right to prevent an accident. The
speed at which the approaching bus was running
prevented David Ico from swerving the jeepney to
the right shoulder of the road in time to avoid the
collision. Thus, even assuming that the jeepney driver
perceived the danger a few seconds before the
actual collision, he had no opportunity to avoid it.
This Court has held that the last clear chance
doctrine "can never apply where the party charged
is required to act instantaneously, and if the injury
12 |Torts Part 3 Case Digests
cannot be avoided by the application of all means
at hand after the peril is or should have been
discovered" [Ong v. Metropolitan Water District,
supra].
FRITZ
PRESCRIPTION
12. FERRER VS ERICTA
FACTS:
Mr. and Mrs. Francis Pfleider, residents of Bayawan,
Negros Oriental, were the owners or operators of a
Ford pick-up car; that at about 5:00 o'clock in the
afternoon of December 31, 1970, in the streets of
Bayawan, Negros Oriental, their son, Dennis Pfleider,
who was then only sixteen (16) years of age, without
proper official authority, drove the above-described
vehicle, without due regard to traffic rules and
regulations, and without taking the necessary
precaution to prevent injury to persons or damage
to property, and as a consequence the pickup car
was overturned, causing physical injuries to Annette
Ferrer, who was then a passenger therein, which
injuries paralyzed her and required medical
treatment and confinement at different hospitals for
more than two (2) years; that as a result of the
physical injuries sustained by Annette, she suffered
unimaginable physical pain, mental anguish, and
her parents also suffered mental anguish, moral
shock and spent a considerable sum of money for
her treatment. A complaint for damages was filed
on January 6, 1975.
In due time, Dennis Pfleider contended that he
exercised due care and utmost diligence in driving
the vehicle aforementioned and alleging that
Annette Ferrer and the other persons aboard said
vehicle were not passengers in the strict sense of the
term, but were merely joy riders and that,
consequently, he had no obligation whatsoever to
them.
On July 21, 1975, RTC rendered judgment against
private respondents, finding that the minor Dennis
Pfleider, was allowed by his parents to operate a
Ford pick-up car and because of his reckless
negligence caused the accident in question,
resulting in injuries to Annette.
Pfleiders asserted that the complaint shows on its
face "that it was filed only on January 6, 1975, or after
the lapse of MORE THAN FOUR YEARS from the date
of the accident on December 31, 1970", likewise
appearing from the complaint and, therefore, the
action has already prescribed under Article 1146 of
the Civil Code.
ISSUE: WON the defense of prescription had been
deemed waived by Pfleider's failure to allege the
same in their answer
RULING: NO
As early as Chua Lamko v. Dioso, et al., this Court
sustained the dismissal of a counterclaim on the
ground of prescription, although such defense was
not raised in the answer of the plaintiff. Thus, this
Court held that where the answer does not
take issue with the complaint as to dates involved in
the defendant's claim of prescription, his failure to
specifically plead prescription in the answer does
not constitute a waiver of the defense of prescription.
It was explained that the defense of prescription,
even if not raised in a motion to dismiss or in the
answer, is not deemed waived unless such defense
raise sissues of fact not appearing upon the
preceding pleading.
In Philippine National Bank v. Perez, et al., 6 which
was an action filed by the Philippine National Bank
on March 22, 1961 for revival of a judgment rendered
on December 29, 1949 against Amando Perez,
Gregorio Pumuntoc and Virginia de Pumuntoc
pursuant to Section 6, Rule 39 of the rules of court the
defendants were declared in default for their failure
to file their answer. There upon, the plaintiff
submitted its evidence, but when the case was
submitted for decision, the court a quo dismissed the
complaint on the ground that plaintiff's cause of
action had already prescribed under Articles 1144
and 1152 of the Civil Code. The plaintiff in said case,
contending that since prescription is a defense that
can only be set up by defendants, the court could
not motu proprio consider it as a basis for dismissal,
moved to reconsider the order, but its motion was
denied. When the issue was raised to this Court, We
ruled:
It is true that the defense of
prescription can only be considered if
the same is invoked as such in the
answer of the defendant and that in
this particular instance no such
defense was invoked because the
defendants had been declared in
default, but such rule does riot obtain
when the evidence shows that the
cause of action upon which plaintiff's
13 |Torts Part 3 Case Digests
 complaint is based is already barred
by the statute of limitations. (Emphasis
supplied.)
Again, in Philippine National Bank v. Pacific
Commission House, 7 where the action sought to
revive a judgment rendered by the Court of First
Instance of Manila on February 3, 1953 and it was
patent from the stamp appearing on the first page
of the complaint that the complaint was actually
filed on May 31, 1963, this Court sustained the
dismissal of the complaint on the ground of
prescription, although such defense was not raised
in the answer, overruling the appellants' invocation
of Section 2 of Rule 9 of the Rules of Court that
"defenses and objections not pleaded either in a
motion to dismiss or in tile answer are deemed
waived." We held therein that "... the fact that the
plaintiff's own allegation in tile complaint or the
evidence it presented shows clearly that the action
had prescribed removes this case from the rule
regarding waiver of the defense by failure to plead
the same."
In the present case, there is no issue of fact involved
in connection with the question of prescription. The
complaint in Civil Case alleges that the accident
which caused the injuries sustained by plaintiff
Annette Ferrer occured on December 31, 1970. It is
undisputed that the action for damages was only
filed on January 6, 1975. Actions for damages arising
from physical injuries because of a tort must be filed
within four years. The four-year period begins from
the day the quasi-delict is committed or the date of
the accident. The petition for Mandamus to compel
the immediate execution of the Decision dated July
21, 1975, is dismissed
13. KRAMER VS CA
FACTS:
In the early morning of April 8, 1976, the F/B Marjolea,
a fishing boat owned by Ernesto Kramer, Jr. and
Marta Kramer, was navigating its way from
Marinduque to Manila. Somewhere near Maricabon
Island and Cape Santiago, the boat figured in a
collision with an inter-island vessel, the M/V Asia
Philippines owned by Trans-Asia Shipping Lines, Inc.
As a consequence of the collision, the F/B Marjolea
sank, taking with it its fish catch.
After the mishap, the captains of both vessels filed
their respective marine protests with the Board of
Marine Inquiry of the Philippine Coast Guard. The
Board conducted an investigation for the purpose of
determining the proximate cause of the maritime
collision. On October 19, 1981, the Board concluded
that the loss of the F/B Marjolea and its fish catch was
attributable to the negligence of the employees of
the Trans-Asia who were on board the M/V Asia
Philippines during the collision.
On May 30, 1985, Kramers instituted a Complaint for
damages. Trans-Asia filed a Motion seeking the
dismissal of the Complaint on the ground of
prescription. It was argued that under Article 1146 of
the Civil Code, the prescriptive period for instituting
a Complaint for damages arising from a quasi-delict
like a maritime collision is four years. It was
maintained that the Kramers should have filed their
Complaint within four years from the date when their
cause of action accrued, i.e., from April 8, 1976
when the maritime collision took place, and that
accordingly, the Complaint filed on May 30, 1985
was instituted beyond the four-year prescriptive
period.
Kramers argued that the running of the prescriptive
period was tolled by the filing of the marine protest
and that their cause of action accrued only on April
29, 1982, the date when the Decision ascertaining
the negligence of the crew of the M/V Asia
Philippines had become final, and that the four-year
prescriptive period under Article 1146 of the Civil
Code should be computed from the said date.
Kramers concluded that inasmuch as the Complaint
was filed on May 30, 1985, the same was seasonably
filed.
ISSUE: WON a Complaint for damages instituted by
the Kramers against Trans-Asia arising from a marine
collision is barred by the statute of limitations
RULING: YES
The petition is devoid of merit. Under Article 1146 of
the Civil Code, an action based upon a quasi-delict
must be instituted within four (4) years. The
prescriptive period begins from the day the quasi-
delict is committed. In Paulan vs. Sarabia, 16 this
Court ruled that in an action for damages arising
from the collision of two (2) trucks, the action being
based on a quasi-delict, the four (4) year prescriptive
period must be counted from the day of the collision.
In Espanol vs. Chairman, Philippine Veterans
Administration, 17 this Court held as follows-
The right of action accrues when
there exists a cause of action, which
14 |Torts Part 3 Case Digests
 consists of 3 elements, namely: a) a
right in favor of the plaintiff by
whatever means and under
whatever law it arises or is created; b)
an obligation on the part of
defendant to respect such right; and
c) an act or omission on the part of
such defendant violative of the right
of the plaintiff ... It is only when the last
element occurs or takes place that it
can be said in law that a cause of
action has arisen ... .
From the foregoing ruling, it is clear that the
prescriptive period must be counted when the last
element occurs or takes place, that is, the time of the
commission of an act or omission violative of the
right of the plaintiff, which is the time when the cause
of action arises.
It is therefore clear that in this action for damages
arising from the collision of two (2) vessels the four (4)
year prescriptive period must be counted from the
day of the collision. The aggrieved party need not
wait for a determination by an administrative body
like a Board of Marine Inquiry, that the collision was
caused by the fault or negligence of the other party
before he can file an action for damages. The ruling
in Vasquez does not apply in this case. Immediately
after the collision the aggrieved party can seek relief
from the courts by alleging such negligence or fault
of the owners, agents or personnel of the other
vessel.
Thus, the respondent court correctly found that the
action of Kramer has prescribed. The collision
occurred on April 8, 1976. The complaint for
damages was filed in court only on May 30, 1 985,
was beyond the four (4) year prescriptive period.
ADA
FORTUITOUS EVENT
14. TEODORO M. HERNANDEZ vs. THE HONORABLE
CHAIRMAN, COMMISSION ON AUDIT
FACTS:
Teodoro M. Hernandez was the officer-in-charge
and special disbursing officer of the Ternate Beach
Project of the Philippine Tourism Authority in Cavite.
He went to encash two checks covering the wages
of the employees and the operating expenses of the
Project. He estimated that the money would be
available by ten o'clock in the morning and that he
would be back in Ternate by about two o'clock in
the afternoon of the same day.
For some reason, however, the processing of the
checks was delayed and was completed only at
three o'clock that afternoon. He decided
nevertheless to encash them because the Project
employees would be waiting for their pay the
following day. He thought he had to do this for their
benefit as otherwise they would have to wait until
the following Tuesday at the earliest when the main
office would reopen. He collected the cash value of
the checks and left the main office with not an
insubstantial amount of money in his hands.
What would he do with the money in the meantime?
The petitioner had two choices, to wit: (1) return to
Ternate, Cavite, that same afternoon and arrive
there in the early evening; or (2) take the money with
him to his house in Marilao, Bulacan, spend the night
there, and leave for Ternate the following morning.
He opted for the second, thinking it the safer one. He
took a passenger jeep bound for his house in
Bulacan.
It was while the vehicle was along its way that two
persons boarded with knives in hand and robbery in
mind. One pointed his weapon at the his side while
the other slit his pocket and forcibly took the money
he was carrying. The two then jumped out of the
jeep and ran. Hernandez, after the initial shock,
immediately followed in desperate pursuit. The
stolen money he took with him has not been
recovered.
Hernandez filed a request for relief from money
accountability under Section 638 of the Revised
Administrative Code.
However, the Commission on Audit, through then
Chairman Francisco S. Tantuico, jr. denied the
petitioner's request, observing inter alia:
In the instant case, the loss of the P10,175.00 under
the accountability of Mr. Hernandez can be
attributed to his negligence because had he
brought the cash proceeds of the checks
(replenishment fund) to the Beach Park in Ternate,
Cavite, immediately after encashment for
safekeeping in his office, which is the normal
procedure in the handling of public funds, the loss of
said cash thru robbery could have been aborted.
15 |Torts Part 3 Case Digests

In the petition at bar, Hernandez claims that the
Commission on Audit acted with grave abuse of
discretion in denying him relief and in holding him
negligent for the loss of the stolen money. He avers
he has done only what any reasonable man would
have done and should not be held accountable for
a fortuitous event over which he had no control.
The Commission on Audit insists in this memorandum
that the petitioner should not be relieved from his
money accountability because it was his own
negligence that led to the loss of the cash he had
sought to take not to Ternate in Cavite but to
Marilao.
The memorandum concludes that in deciding to
take the money with him to Marilao after
imprudently withdrawing it from the main office, the
petitioner was assuming a risk from which he cannot
now be excused after the loss of the money as a
result of the robbery to which it was unreasonably
exposed. In any event, the burden of proof in
petitions for relief from money accountability rests
with the petitioner, who has not clearly established
that the loss of the money was not the result of his
negligence.
Section 638 of the Revised Administrative Code
reads as follows:
Section 638. Credit for loss occurring in transit or
due to casualty — Notice to Auditor. — When a loss
of government funds or property occurs while the
same is in transit or is caused by fire, theft, or other
casualty, the officer accountable therefor or having
custody thereof shall immediately notify the Auditor
General, or the provincial auditor, according as a
matter is within the original jurisdiction of the one or
the other, and within thirty days or such longer period
as the Auditor, or provincial auditor, may in the
particular case allow, shall present his application for
relief, with the available evidence in support thereof.
An officer who fails to comply with this requirement
shall not be relieved of liability or allowed credit for
any such loss in the settlement of his accounts.
This provision has since then been reiterated, with
some slight modification, in Section 73 of P.D. No.
1445, otherwise known as the "Government Auditing
Code of the Philippines," which was promulgated on
June 11. 1978.
Issue: WON the loss of the money is attributable to
Hernandez' negligence so as to justify the denial of
his request for relief from accountability for the stolen
money
RULING: NO
(Pang MMK. You may exclude this paragraph pero
sayang. Hahaha)
Hindsight is a cruel judge. It is so easy to say, after the
event, that one should have done this and not that
or that he should not have acted at all, or else this
problem would not have arisen at all. That is all very
well as long as one is examining something that has
already taken place. One can hardly be wrong in
such a case. But the trouble with this retrospective
assessment is that it assumes for everybody an
uncanny prescience that will enable him by some
mysterious process to avoid the pitfalls and hazards
that he is expected to have foreseen. It does not
work out that way in real life. For most of us, all we
can rely on is a reasoned conjecture of what might
happen, based on common sense and our own
experiences, or our intuition, if you will, and without
any mystic ability to peer into the future. So it was
with the petitioner.
It is pointless to argue that Hernandez should have
encashed the vouchers earlier because they were
dated anyway. He was not obliged to encash the
checks earlier and then again there might have
been any number of reasons why he did so only on
July 1, 1983. The point is that he did encash the
checks on that date and took the money to Marilao
and not Ternate in view of the lateness of the hour.
Hernandez was moved only by the best of motives
when he encashed the checks so his co-employees
in Ternate could collect their salaries and wages the
following day. Significantly, although this was a non-
working day, he was intending to make the trip to his
office the following day for the unselfish purpose of
accommodating his fellow workers. The other
alternative was to encash the check the next
working day which would have meant a 5-day wait
for the payment of the said salaries and wages.
Being a modest employee himself, Hernanez must
have realized the great discomfort it would cause
the laborer who were dependent on their wages for
their sustenance and were anxious to collect their
pay as soon as possible.
For such an attitude, Hernandez should be
commended rather than faulted.
As for Hernandez's choice between Marilao,
Bulacan, and Ternate, Cavite, one could easily
agree that the former was the safer destination,
16 |Torts Part 3 Case Digests
being nearer, and in view of the comparative
hazards in the trips to the two places. It is true that
the petitioner miscalculated, but the Court feels he
should not be blamed for that. The decision he
made seemed logical at that time and was one that
could be expected of a reasonable and prudent
person. And if, as it happened, the two robbers
attacked him in broad daylight in the jeep while it
was on a busy highway, and in the presence of other
passengers, it cannot be said that all this was the
result of his imprudence and negligence. This was
undoubtedly a fortuitous event covered by the said
provisions, something that could not have been
reasonably foreseen although it could have
happened, and did.
Hernandez is entitled to be relieved from
accountability for the money forcibly taken from
him. To impose such liability upon him would be to
read the law too sternly when it should be softened
by the proven facts.
15. SOUTHEASTERN COLLEGE, INC., petitioner, vs.
COURT OF APPEALS
FACTS:
Private respondents are owners of a house while
petitioner owns a four-storey school building along
the same College Road. A powerful typhoon Saling
hit Metro Manila. Buffeted by very strong winds, the
roof of petitioners building was partly ripped off and
blown away, landing on and destroying portions of
the roofing of private respondents house. After the
typhoon had passed, an ocular inspection of the
destroyed buildings was conducted by a team of
engineers headed by the city building official, Engr.
Jesus L. Reyna.
The report provides that:
One of the factors that may have led to this
calamitous event is the formation of the buildings in
the area and the general direction of the wind.
Situated in the peripheral lot is an almost U-shaped
formation of 4-storey building. Thus, with the strong
winds having a westerly direction, the general
formation of the buildings becomes a big funnel-like
structure, the one situated along College Road,
receiving the heaviest impact of the strong winds.
Hence, there are portions of the roofing, those
located on both ends of the building, which
remained intact after the storm.
Another factor and perhaps the most likely reason
for the dislodging of the roofings structural trusses is
the improper anchorage of the said trusses to the
roof beams. The 1/2 diameter steel bars embedded
on the concrete roof beams which serve as truss
anchorage are not bolted nor nailed to the trusses.
Still, there are other steel bars which were not even
bent to the trusses, thus, those trusses are not
anchored at all to the roof beams.
It then recommended that to avoid any further loss
and damage to lives, limbs and property of persons
living in the vicinity, the fourth floor of subject school
building be declared as a structural hazard.
In their Complaint for damages based on culpa
aquiliana, private respondents alleged that the
damage to their house rendered the same
uninhabitable, forcing them to stay temporarily in
others houses. And so they sought to recover from
petitioner actual damages,moral damages,
exemplary damages and for and as attorneys fees;
plus costs.
In its Answer, petitioner averred that subject school
building had withstood several devastating
typhoons and other calamities in the past, without its
roofing or any portion thereof giving way; that it has
not been remiss in its responsibility to see to it that
said school building, which houses school children,
faculty members, and employees, is in tip-top
condition; and furthermore, typhoon Saling was an
act of God and therefore beyond human control
such that petitioner cannot be answerable for the
damages wrought thereby, absent any negligence
on its part.
TC:
Giving credence to the ocular inspection report to
the effect that subject school building had a
defective roofing structure, found that, while
typhoon Saling was accompanied by strong winds,
the damage to private respondents house could
have been avoided if the construction of the roof of
[petitioners] building was not faulty.
ISSUE: WON the damage on the roof of the building
of private respondents resulting from the impact of
the falling portions of the school buildings roof ripped
off by the strong winds of typhoon Saling, was, within
legal contemplation, due to fortuitous event
RULING: YES
17 |Torts Part 3 Case Digests
This conclusion finds support in Article 1174 of the
Civil Code, which provides:
Art 1174. Except in cases expressly specified by the
law, or when it is otherwise declared by stipulation,
or when the nature of the obligation requires the
assumption of risk, no person shall be responsible for
those events which could not be foreseen, or which,
though foreseen, were inevitable.
In order that a fortuitous event may exempt a person
from liability, it is necessary that he be free from any
previous negligence or misconduct by reason of
which the loss may have been occasion. An act of
God cannot be invoked for the protection of a
person who has been guilty of gross negligence in
not trying to forestall its possible adverse
consequences. When a persons negligence concurs
with an act of God in producing damage or injury to
another, such person is not exempt from liability by
showing that the immediate or proximate cause of
the damage or injury was a fortuitous event. When
the effect is found to be partly the result of the
participation of man whether it be from active
intervention, or neglect, or failure to act the whole
occurrence is hereby humanized, and removed
from the rules applicable to acts of God.
In the case under consideration, the lower court
accorded full credence to the finding of the
investigating team that subject school buildings
roofing had no sufficient anchorage to hold it in
position especially when battered by strong winds.
Based on such finding, the trial court imputed
negligence to petitioner and adjudged it liable for
damages to private respondents.
There is no question that a typhoon or storm is a
fortuitous event, a natural occurrence which may be
foreseen but is unavoidable despite any amount of
foresight, diligence or care. In order to be exempt
from liability arising from any adverse consequence
engendered thereby, there should have been no
human participation amounting to a negligent act.
In other words, the person seeking exoneration from
liability must not be guilty of negligence.
Negligence, as commonly understood, is conduct
which naturally or reasonably creates undue risk or
harm to others. It may be the failure to observe that
degree of care, precaution, and vigilance which the
circumstances justly demand, or the omission to do
something which a prudent and reasonable man,
guided by considerations which ordinarily regulate
the conduct of human affairs, would do, From these
premises, we proceed to determine whether
petitioner was negligent, such that if it were not, the
damage caused to private respondents house
could have been avoided?
At the outset, it bears emphasizing that a person
claiming damages for the negligence of another
has the burden of proving the existence of fault or
negligence causative of his injury or loss. The facts
constitutive of negligence must be affirmatively
established by competent evidence,not merely by
presumptions and conclusions without basis in fact.
Private respondents, in establishing the culpability of
petitioner, merely relied on the aforementioned
report submitted by a team which made an ocular
inspection of petitioners school building after the
typhoon. As the term imparts, an ocular inspection is
one by means of actual sight or viewing. What is
visual to the eye though, is not always reflective of
the real cause behind. For instance, one who hears
a gunshot and then sees a wounded person, cannot
always definitely conclude that a third person shot
the victim. It could have been self-inflicted or
caused accidentally by a stray bullet. The
relationship of cause and effect must be clearly
shown.
In the present case, other than the said ocular
inspection, no investigation was conducted to
determine the real cause of the partial unroofing of
petitioners school building. Private respondents did
not even show that the plans, specifications and
design of said school building were deficient and
defective. Neither did they prove any substantial
deviation from the approved plans and
specifications. Nor did they conclusively establish
that the construction of such building was basically
flawed.
On the other hand, petitioner elicited from one of
the witnesses of private respondents, city building
official Jesus Reyna, that the original plans and
design of petitioners school building were approved
prior to its construction. Engr. Reyna admitted that it
was a legal requirement before the construction of
any building to obtain a permit from the city building
official (city engineer, prior to the passage of the
Building Act of 1977). In like manner, after
construction of the building, a certification must be
secured from the same official attesting to the
readiness for occupancy of the edifice. Having
obtained both building permit and certificate of
occupancy, these are, at the very least, prima facie
evidence of the regular and proper construction of
subject school building.
Furthermore, when part of its roof needed repairs of
the damage inflicted by typhoon Saling, the same
18 |Torts Part 3 Case Digests
city official gave the go-signal for such repairs amount needed for the repair of the roof of their
without any deviation from the original design and subject building. What is more, whether the
subsequently, authorized the use of the entire fourth necessary repairs were caused ONLY by petitioners
floor of the same building. These only prove that alleged negligence in the maintenance of its school
subject building suffers from no structural defect, building, or included the ordinary wear and tear of
contrary to the report that its U-shaped form was the house itself, is an essential question that remains
structurally defective. Having given his unqualified indeterminable.
imprimatur, the city building official is presumed to
have properly performed his duties in connection
therewith.
JONI
In addition, petitioner presented its vice president for
finance and administration who testified that an MISTAKE AND WAIVER
annual maintenance inspection and repair of
subject school building were regularly undertaken.
16. GATCHALIAN VS CA
Petitioner was even willing to present its
maintenance supervisor to attest to the extent of
Facts: July 11, 1973 noontime, petitioner Reynalda
such regular inspection but private respondents
Gatchalian boarded, as a paying passenger,
agreed to dispense with his testimony and simply
respondent's "Thames" mini bus at a point in San
stipulated that it would be corroborative of the vice
Eugenio, Aringay, La Union, bound for Bauang. On
presidents narration.
the way, while the bus was running along the
highway in Barrio Payocpoc, Bauang, Union, "a
Moreover, the city building official, who has been in
snapping sound" was suddenly heard at one part of
the city government service since 1974, admitted in
the bus and, shortly thereafter, the vehicle bumped
open court that no complaint regarding any defect
a cement flower pot on the side of the road, went
on the same structure has ever been lodged before
off the road, turned turtle and fell into a ditch.
his office prior to the institution of the case at bench.
Several passengers, including petitioner Gatchalian,
It is a matter of judicial notice that typhoons are
were injured. They were promptly taken to Bethany
common occurrences in this country. If subject
Hospital at San Fernando, La Union, for medical
school buildings roofing was not firmly anchored to
treatment. Upon medical examination, petitioner
its trusses, obviously, it could not have withstood long
was found to have sustained physical injuries on the
years and several typhoons even stronger than
leg, arm and forehead, specifically described as
Saling.
follows: lacerated wound, forehead; abrasion,
elbow, left; abrasion, knee, left; abrasion, lateral
In light of the foregoing, we find no clear and
surface, leg, left.
convincing evidence to sustain the judgment of the
appellate court. We thus hold that petitioner has not
Mrs. Adela Delim, wife of respondent, visited them
been shown negligent or at fault regarding the
and later paid for their hospitalization and medical
construction and maintenance of its school building
expenses of the passengers. She also gave petitioner
in question and that typhoon Saling was the
P12.00 with which to pay her transportation expense
proximate cause of the damage suffered by private
in going home from the hospital. However, before
respondents house.
Mrs. Delim left, she had the injured passengers,
including petitioner, sign an already prepared Joint
Petitioner cannot be made to answer for a purely
Affidavit which stated, among other things:
fortuitous event. More so because no bad faith or
willful act to cause damage was alleged and
proven to warrant moral damages. That we are no longer interested to file a
complaint, criminal or civil against the said
Private respondents failed to adduce adequate and driver and owner of the said Thames,
competent proof of the pecuniary loss they actually because it was an accident and the said
incurred. It is not enough that the damage be driver and owner of the said Thames have
capable of proof but must be actually proved with gone to the extent of helping us to be
a reasonable degree of certainty, pointing out treated upon our injuries.
specific facts that afford a basis for measuring
whatever compensatory damages are borne. Still, petitioner Gathalian filed an action extra
Private respondents merely submitted an estimated contractu to recover compensatory and moral

19 |Torts Part 3 Case Digests

damages. She alleged in the complaint that her
injuries sustained from the vehicular mishap had left
her with a conspicuous white scar measuring 1 by 1/2
inches on the forehead, generating mental suffering
and an inferiority complex on her part; and that as a
result, she had to retire in seclusion and stay away
from her friends. She also alleged that the scar
diminished her facial beauty and deprived her of
opportunities for employment. She prayed for an
award of: P10,000.00 for loss of employment and
other opportunities; P10,000.00 for the cost of plastic
surgery for removal of the scar on her forehead;
P30,000.00 for moral damages; and P1,000.00 as
attorney's fees.
Respondent averred that the vehicular mishap was
due to force majeure, and that petitioner had
already been paid and moreover had waived any
right to institute any action against him (private
respondent) and his driver when Gatchalian signed
the Joint Affidavit on 14 July 1973.
ISSUE: WON there was a valid waiver?
RULING: NO
A waiver, to be valid and effective, must in the first
place be couched in clear and unequivocal terms
which leave no doubt as to the intention of a person
to give up a right or benefit which legally pertains to
him. A waiver may not casually be attributed to a
person when the terms thereof do not explicitly and
clearly evidence an intent to abandon a right
vested in such person.
The degree of explicitness which this Court has
required in purported waivers is illustrated in Yepes
and Susaya v. Samar Express Transit:
The appellees did not actually waive
their right to claim damages from
appellant for the latter's failure to
comply with their contract of
carriage. All that said document
proves is that they expressed a
"desire" to make the waiver — which
obviously is not the same as making
an actual waiver of their right. A
waiver of the kind invoked by
appellant must be clear and
unequivocal.
If we apply the standard used in Yepes and
Susaya, we would have to conclude that the terms
of the Joint Affidavit in the instant case cannot be
regarded as a waiver cast in "clear and
unequivocal" terms. Moreover, the circumstances
under which the Joint Affidavit was signed by
petitioner Gatchalian need to be considered.
Petitioner testified that she was still reeling from the
effects of the vehicular accident, having been in the
hospital for only three days, when the purported
waiver in the form of the Joint Affidavit was
presented to her for signing; that while reading the
same, she experienced dizziness but that, seeing the
other passengers who had also suffered injuries sign
the document, she too signed without bothering to
read the Joint Affidavit in its entirety. Considering
these circumstances there appears substantial
doubt whether petitioner understood fully the import
of the Joint Affidavit (prepared by or at the instance
of private respondent) she signed and whether she
actually intended thereby to waive any right of
action against private respondent.
Finally, because what is involved here is the liability
of a common carrier for injuries sustained by
passengers in respect of whose safety a common
carrier must exercise extraordinary diligence, we
must construe any such purported waiver most
strictly against the common carrier. For a waiver to
be valid and effective, it must not be contrary to law,
morals, public policy or good customs. To uphold a
supposed waiver of any right to claim damages by
an injured passenger, under circumstances like those
exhibited in this case, would be to dilute and
weaken the standard of extraordinary diligence
exacted by the law from common carriers and
hence to render that standard unenforceable. We
believe such a purported waiver is offensive to
public policy.
WHEREFORE, Respondent is hereby ORDERED to pay
petitioner Reynalda Gatchalian the following sums:
1) P15,000.00 as actual or compensatory damages
to cover the cost of plastic surgery for the removal of
the scar on petitioner's forehead; 2) P30,000.00 as
moral damages; and 3) P1,000.00 as attorney's fees.
Costs against private respondent. SO ORDERED.
DAMNUM ABSQUE INJURIA
17. NAPOCOR vs. CA
FACTS:
Early morning, October 27, 1978, at the height of
typhoon "Kading", a massive flood covered the
towns near Angat Dam, particularly the town of
20 |Torts Part 3 Case Digests
Norzagaray, causing several deaths and the loss and
destruction of houses, farms, plants, working animals
and other properties of the people residing near the
Angat River. Private respondents recalled, they were
awakened by the sound of rampaging water all
around them. The water came swiftly and strongly
that before they could do anything to save their
belongings, their houses had submerged, some even
swept away by the strong current. A number of
people were able to save their lives only by climbing
trees.
Respondents blamed the sudden rush of water to
the reckless and imprudent opening of all the three
(3) floodgates of the Angat Dam spillway, without
prior warning to the people living near or within the
vicinity of the dam.
Petitioners denied respondents' allegations and
contended that they have maintained the water in
the Angat Dam at a safe level and that the opening
of the spillways was done gradually and after all
precautionary measures had been taken. Petitioner
further contended that it had always exercised the
diligence of a good father in the selection of its
officials and employees and in their supervision. It
also claimed that written warnings were earlier sent
to the towns concerned. At the time typhoon
"Kading" hit Bulacan with its torrential rain, a great
volume of flood water flowed into the dam's reservoir
necessitating the release of the water therein in
order to prevent the dam from collapsing and
causing the loss of lives and tremendous damage to
livestock and properties.
Also, there was no direct causal relationship
between the alleged damages suffered by the
respondents and the acts and omissions attributed
to the former. That it was the respondents who
assumed the risk of residing near the Angat River,
and even assuming that respondents suffered
damages, the cause was due to a fortuitous event
and such damages are of the nature and character
of damnum absque injuria, hence, respondents
have no cause of action against them.
ISSUE: WON petitioner was correct in saying that the
damages suffered by the respondents was in the
nature and character of damnun absque injuria
Ruling: NO
The obligor cannot escape liability, if upon the
happening of a fortuitous event or an act of God, a
corresponding fraud, negligence, delay or violation
or contravention in any manner of the tenor of the
obligation as provided in Article 1170 of the Civil
Code which results in loss or damage.
Petitioners contended that unlike in Juan F. Nakpil &
Sons, there was no privity of contract between
herein petitioners and private respondents. They
further alleged that they owed no specific duty to
private respondents in the same way that the
architect of a building owed a specific duty to its
owner. Petitioners, however, failed to consider that
even if there was no contractual relation between
themselves and private respondents, they are still
liable under the law on quasi-delict. Article 2176 of
the Civil Code explicitly provides "whoever by act or
omission causes damage to another there being
fault or negligence is obliged to pay for the damage
done."
Neither can petitioners escape liability by
invoking force majeure. Act of God or force
majeure, by definition, are extraordinary events not
foreseeable or avoidable, events that could not be
foreseen, or which, though foreseen, are inevitable.
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. As a general rule, no person shall be
responsible for those events which could not be
foreseen or which though foreseen, were inevitable.
However, the principle embodied in the act of God
doctrine strictly requires that the act must be
occasioned solely by the violence of nature. Human
intervention is to be excluded from creating or
entering into the cause of the mischief. When the
effect is found to be in part the result of the
participation of man, whether due to his active
intervention or neglect or failure to act, the whole
occurrence is then humanized and removed from
the rules applicable to the acts of God.
So generally it cannot be said that
damage, injury or loss is due to an act
of God where it was caused merely
by excessive or heavy rainfall, storms
and to weather conditions which are
not unusual in character, those which
could have been reasonably
anticipated or where the injury
complained of is due rather to the
negligence or mismanagement of
man than to the disturbance of the
elements or where such damage,
injury or loss might have been
21 |Torts Part 3 Case Digests
 mitigated or prevented by diligence
exercised after the occurrence.
In the case at bar, although the typhoon "Kading"
was an act of God, petitioners cannot escape
liability because their negligence was the proximate
cause of the loss and damage.
It has been shown that the petitioner failed
to take the necessary safeguards to prevent
the danger that the Angat Dam posed in a
situation of such nature as that of typhoon
"Kading". "PAG-ASA" representative stated
that based on their records the rainfall on
October 26 and 27, 1978 is classified only as
moderate, and could not have caused flash
floods. He testified that flash floods exceeds
50 millimeters per hour and lasts for at least
two hours. He stated that typhoon "Yaning"
which occurred on October 7 to 14, 1978
gave a much heavier rainfall than "Kading",
and so did other previous typhoons.
This was corroborated by the testimonies of
respondents, most of whom have lived in the
area all their lives, but had never before
experienced such flooding as would have
placed them on alert, even during previous
stronger typhoons such as "Dading" and
"Yoling."
What more, when the evidence shows that
as early as October 25, 1978 the newspapers
had announced the expected occurrence
of a powerful typhoon code-named
"Kading". On October 26, Bulletin Today had
as its headline the coming of the typhoon.
Despite these announcements, the water
level in the dam was maintained at its
maximum from October 21, until midnight of
October 26, 1978.
The defendants contended that the release
of water had been "gradual". The lower court
did not find this true. What made the situation
worse was that the opening of the spillways
was made at the unholy hours when
residents were asleep. The plaintiffs all
testified that they were never given any
warning that the spillways would be opened
to that extent. . . .
When the negligence of a person concurs with an
act of God producing a loss, such person is not
exempt from liability by showing that the immediate
cause of the damage was the act of God. To be
exempt he must be free from any previous
negligence or misconduct by which the loss or
damage may have been occasioned.
Thus, the court did not give credence to petitioners'
contention that the damage caused by the
opening of the dam was in the nature of damnum
absque injuria, which presupposes that although
there was physical damage, there was no legal
injury in view of the fortuitous events. There is no
question that petitioners have the right, duty and
obligation to operate, maintain and preserve the
facilities of Angat Dam, but their negligence cannot
be countenanced. The end does not justify the
means, particularly because they could have done
otherwise than simultaneously opening the spillways
to such extent.
Lastly, petitioners insist that their giving of prior written
warning should absolve them from liability. Notice of
warning was served by them on "a responsible
employee in the office of the mayor of the
municipality, or in the absence of such responsible
employee, on a member of the municipal police
force." The presumption was, however, refuted by
the evidence and testimonies of respondents who all
denied having been given any warning that the
spillways would be opened to such extent and at a
short period of time.
The letter itself, addressed merely "TO ALL
CONCERNED", would not strike one to be of serious
importance, sufficient enough to set alarm and
cause people to take precautions for their safety's
sake.
LADY
EMERGENCY RULE
18. MCKEE v. IAC
FACTS:
It was the 8th of January in 1977, at around 9:00 or
10:00 in the morning, somewhere between Angeles
City and San Fernando, Pampanga. Jose Koh was
driving his daughter, Araceli Koh McKee, and her
minor children, Christopher, George, and Kim, as well
as Kim’s babysitter, Loida Bondoc, from San
Fernando, Pampanga in the direction of Angeles
City (northward) in a Ford Escort.
Meanwhile, a cargo truck owned by Jaime Tayag
and Rosalinda Manalo, driven by Ruben Galang,
22 |Torts Part 3 Case Digests
was headed in the opposite direction, from Angeles
City to San Fernando (southward), going to Manila.
The cargo truck was considerable in size as it was
carrying 200 hundred cavans of rice, which weighed
10 metric tons.
As the Escort approached one Pulong-Pulo Bridge
from the southern portion, 2 boys suddenly ran from
the right side of the road into the Escort’s lane. As the
boys were going back and forth, unsure of whether
to cross all the way or turn back, Jose blew his horn.
He was then forced to swerve left and into the lane
Galang was driving in. Jose switched his headlights
on, applied his brakes, and attempted to return to
his lane.
However, he failed to get back into the right lane,
and collided with the cargo truck. The collision
occurred on the bridge. The collision resulted in the
deaths of the driver, Jose, the one-year-old, Kim, and
her babysitter, Loida, on whose lap she was sitting.
Loida was seated in the passenger seat. Araceli,
Christopher, and George, who were sitting in the
back of the Escort, received physical injuries from the
collision.
An information was filed against Ruben Galang,
charging him for reckless imprudence resulting in
multiple homicide, physical injuries, and damage to
property. He was found guilty beyond reasonable
doubt of the charges in the information. The
conviction was affirmed by the CA and achieved
finality after the denial by the CA of his MR and the
denial by the SC of his Petition for Review.
Two civil cases were filed. The first one, by the wife
and children of Jose Koh, and the second one by
Araceli and her husband for the death of Kim and
injuries to Araceli and her other children. The
respondents were impleaded against as the
employers of Ruben Galang – Galang was not
included. The cases here are based on quasi-delict.
These cases were eventually consolidated.
The trial court dismissed the civil cases and awarded
the respondents damages and attorney’s fees. On
appeal to the Intermediate Appellate Court, the
dismissal was reversed. This was based on its finding
that it was Galang’s inattentiveness or reckless
imprudence that caused the accident.
However, upon filing by the respondents of an MR,
the IAC set aside its original decision and upheld that
of the trial court because the fact that Koh’s car
invaded the lane of the truck and the collision
occurred while still in Galang’s lane gave rise to the
presumption that Koh was negligent.
ISSUE: WON KOH WAS NEGLIGENT BY INVADING THE
LANE OF THE TRUCK?
RULING: NO (He is not liable under the Test of
Negligence and Emergency Rule)
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. It is that
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.
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.
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."
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
23 |Torts Part 3 Case Digests
test, therefore, it is clear that he was not guilty of
negligence.
OTHER ISSUES/ DOCTRINES DISCUSSED:
1. KOH’S NEGLIGENCE IS NOT 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.
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.
This was buttressed by the his own testimony that 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.
2. THE DOCTRINE OF LAST CLEAR CHANCE APPLIES
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.
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.
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.
3. EMPLOYERS ARE DIRECTLY AND PRIMARILY LIABLE.
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.
The Diligence of a Good Father referred to means
the diligence in the selection and supervision of
employees. The answers of the private respondents
in the other civil cases did not interpose this defense.
Neither did they attempt to prove it.
VOLENTI NON-FIT INJURIA
19. INERCO VS CA
FACTS:
A strong typhoon by the code name "Gening"
buffeted the province of Ilocos Norte on the evening
of June 28 until the early morning of June 29, 1967,
bringing heavy rains and consequent flooding in its
wake.
24 |Torts Part 3 Case Digests
Between 5:30 and 6:00 A.M. on June 29, 1967, after
the typhoon had abated and when the floodwaters
were beginning to recede, the deceased Isabel Lao
Juan, fondly called Nana Belen, ventured out of the
house of her son-in-law, Antonio Yabes, on No. 19
Guerrero Street, Laoag City, and proceeded
northward towards the direction of the Five Sisters
Emporium, of which she was the owner and
proprietress, to look after the merchandise therein
that might have been damaged.
Wading in waistdeep flood on Guerrero, the
deceased was followed by Aida Bulong, a Salesgirl
at the Five Sisters Grocery, also owned by the
deceased, and by Linda Alonzo Estavillo, a ticket
seller at the YJ Cinema, which was partly owned by
the deceased. Aida and Linda walked side by side
at a distance of between 5 and 6 meters behind the
deceased. Suddenly, the deceased screamed "Ay"
and quickly sank into the water. The two girls
attempted to help, but fear dissuaded them from
doing so because on the spot where the deceased
sank they saw an electric wire dangling from a post
and moving in snake-like fashion in the water. Upon
their shouts for help, Ernesto dela Cruz came out of
the house of Antonio Yabes. Ernesto tried to go to
the deceased, but at four meters away from her he
turned back shouting that the water was grounded.
When Antonio Yabes was informed by Ernesto that
his mother-in-law had been electrocuted, he acted
immediately. With his wife Jane, together with
Ernesto and one Joe Ros, Yabes passed by the City
Hall of Laoag to request the police to ask the people
of defendant Ilocos Norte Electric Company or
INELCO to cut off the electric current. Then the party
waded to the house on Guerrero Street. The
floodwater was receding and the lights inside the
house were out indicating that the electric current
had been cut off in Guerrero. Yabes instructed his
boys to fish for the body of the deceased. The body
was recovered about two meters from an electric
post.
In another place, at about 4:00 AM. on that fateful
date, June 29, 1967, Engineer Antonio Juan, Power
Plant Engineer of the National Power Corporation at
the Laoag Diesel-Electric Plant, noticed certain
fluctuations in their electric meter which indicated
such abnormalities as grounded or short-circuited
lines. Between 6:00 and 6:30 A.M., he set out of the
Laoag NPC Compound on an inspection. On the
way, he saw grounded and disconnected lines.
Electric lines were hanging from the posts to the
ground. Since he could not see any INELCO lineman,
he decided to go to the INELCO Office at the Life
Theatre on Rizal Street by way of Guerrero.
At about 8:10 A.M., Engr. Juan went out of the
compound again on another inspection trip. Having
learned of the death of Isabel Lao Juan, he passed
by the house of the deceased at the corner of
Guerrero and M.H. del Pilar streets to which the body
had been taken.
In the afternoon of the same day, he went on a third
inspection trip preparatory to the restoration of
power. The dangling wire he saw on Guerrero early
in the morning of June 29, 1967 was no longer there.
An action for damages in the aggregate amount of
P250,000 was instituted by the heirs of the deceased
with the aforesaid CFI on June 24, 1968.
Defenses:
(1) Electric service system of the INELCO in the whole
franchise area did not suffer from any defect that
might constitute a hazard to life and property.
(2) Service lines, devices and other INELCO
equipment in Area No. 9 had been newly-installed
prior to the date in question.
(3) Installed safety devices to prevent and avoid
injuries to persons and damage to property in case
of natural calamities such as floods, typhoons, fire
and others.
(4) 12 linesmen charged with the duty of making a
round-the-clock check-up of the areas respectively
assigned to them.
(5) deceased could have died simply either by
drowning or by electrocution due to negligence
attributable only to herself and not to petitioner.
(6) deceased, without petitioner's knowledge,
caused the installation of a burglar deterrent by
connecting a wire from the main house to the iron
gate and fence of steel matting, thus, charging the
latter with electric current whenever the switch is on.
DECISION OF LOWER COURTS: Defendant is hereby
sentenced to pay plaintiffs.
ISSUE: WON INELCO IS LIABLE FOR NEGLIGENCE?
RULING: YES.
PETITIONER NOT EXONERATED AS VICTIM'S DEATH IS
CAUSED BY ITS NEGLIGENCE.
25 |Torts Part 3 Case Digests
While is it true that typhoons and floods are
considered Acts of God for which no person may be
held responsible, it was not said eventuality which
directly caused the victim’s death. It was through
the intervention of petitioner’s negligence that the
death took place.
was at a place where she had a right to be without
regard to petitioner's consent as she was on her way
to protect her merchandise. Hence, private
respondents, as heirs, may not be barred from
recovering damages as a result of the death caused
by petitioner's negligence.

Under the circumstances of the case, petitioner was
negligent in seeing to it that no harm is done to the
general public". . . considering that electricity is an
agency, subtle and deadly, the measure of care
required of electric companies must be
commensurate with or proportionate to the danger.
The duty of exercising this high degree of diligence
and care extends to every place where persons
have a right to be".
The negligence of petitioner having been shown, it
may not now absolve itself from liability by arguing
that the victim's death was solely due to a fortuitous
event. "When an act of God combines or concurs
with the negligence of the defendant to produce an
injury, the defendant is liable if the injury would not
have resulted but for his own negligent conduct or
omission".
INELCO FAILED TO EXERCISE EXTRAORDINARY
DILIGENCE.
"When a storm occurs that is liable to prostrate the
wires, due care requires prompt efforts to discover
and repair broken lines". The fact is that when
Engineer Antonio Juan of the National Power
Corporation set out in the early morning of June 29,
1967 on an inspection tour, he saw grounded and
disconnected lines hanging from posts to the ground
but did not see any INELCO lineman either in the
streets or at the INELCO office.
The foregoing shows that petitioner's duty to
exercise extraordinary diligence under the
circumstance was not observed, confirming the
negligence of petitioner.

A PERSON WHO VOLUNTARILY ASSENTS TO A KNOWN

DANGER MUST ABIDE BY THE CONSEQUENCES; What is essential is invisible to the eye. ~Antoine de
EXCEPTIONS. Saint Exupery

The maxim "volenti non fit injuria" (To a willing person,

injury is not done) relied upon by petitioner finds no
application in the case at bar.

It is imperative to note the surrounding

circumstances which impelled the deceased to
leave the comforts of a roof and brave the subsiding
typhoon. As testified by Linda Alonzo Estavillo and
Aida Bulong the deceased, accompanied by the
former two, were on their way to the latter's grocery
store "to see to it that the goods were not flooded."

As such, shall We punish her for exercising her right to

protect her property from the floods by imputing
upon her the unfavorable presumption that she
assumed the risk of personal injury? Definitely not. For
it has been held that a person is excused from the
force of the rule, that when he voluntarily assents to
a known danger he must abide by the
consequences, if an emergency is found to exist or if
the life or property of another is in peril or when he
seeks to rescue his endangered property .

Clearly, an emergency was at hand as the

deceased's property, a source of her livelihood, was
faced with an impending loss. Furthermore, the
deceased, at the time the fatal incident occurred,

26 |Torts Part 3 Case Digests