TORTS AND DAMAGES – MIDTERM CASES 1

CIRCUMSTANCES TO CONSIDER IN DETERMINING NEGLIGENCE - TIME

1. People vs. Ramirez November 3, 1925

Facts:

 Bartolome Quiaoit invited Pedro Ramirez, the accused herein, Victoriano Ranga, the deceased, and Agustin Menor to
hunt in the mount Balitok of the municipality of Nueva Era, Province of Ilocos Norte. The three last named proceeded to
hunt, leaving Bartolome Quiaoit in a hut approximately 1 kilometer from the place where the act complained of took
place. Upon the hunters having arrived at a place in mount Balitok, Pedro Ramirez, who was carrying the shotgun of
Bartolome Quiaoit with a lantern, happened to hunt a deer, and then he told his companions to stay there and watch
over the prey while he entered the forest to get it. Thus Victoriano Ranga and Agusto Menor were waiting when
suddenly the report of the shotgun was heard hitting Victoriano Ranga in the eye and the right temple, who thereafter
died on that night as a result of the wounds.

It does not appear that the matter was judicially investigated until the month of October, 1924, when the complaint was
filed which initiated this proceedings.

Ruling:

The testimony of the two witnesses as to the distance of the accused from them when he fired the gun for the second
time is contradictory. On the other hand, there is not in the record any circumstances as to whether or not the deceased
and the witness Agustin Menor were in the same place where they were left by the defendant, when the latter fired.

The night being dark like that when the event took place, the hunter in the midst of a forest without paths is likely to get
confused as to his relative situation; and after walking around, he may think having gone very far, when in fact he has
not, from the point of departure. and so, judging the case from what the two witnesses Agustin Menor and Pedro
Ramirez have testified to, and taking into account that there existed no motive whatever for resentment on the part of
the defendant against the offended party, we are compelled to conclude that the act complained of constitutes
homicide through reckless imprudence.

The defendant, who was carrying a firearm to hunt at nighttime with the aid of a lantern, knowing that he had two
companions, should have exercised all the necessary diligence to avoid every undesirable accident, such as the one that
unfortunately occurred on the person of Victoriano Ranga.

While the fact that the defendant, a few days after the event, has offered to the mother of the deceased a carabao and a
horse by way of indemnity, indicates on the one hand that the defendant admitted the commission of the crime, on the
other it shows that he performed that act without criminal intent and only through a real imprudence.

The defense alleges that the trial court must have solved the reasonable doubt in favor of the defendant. After
considering carefully the evidence and all the circumstances of the case, we are of the opinion and so hold that the
defendant is guilty of the crime of homicide through reckless imprudence, and must be punished under paragraph 1 of
article 568 of the Penal Code.

Wherefore the penalty of one year and one day of  prision correccional, with the accessories prescribed by the law, must
be imposed upon him, and with modification, the judgment appealed from is affirmed in all other respects, with the
costs against the appellant. So ordered.

2. Adzura vs. Court of Appeals, 301 SCRA 657 (1999)

Facts:

petitioner Xerxes Adzuara y Dotimas, then a law student, and his friends Rene Gonzalo and Richard Jose were cruising in
a 4-door Colt Galant sedan with plate number NMT 718 along the stretch of Quezon Avenue coming from the direction
of EDSA towards Delta Circle at approximately 40 kilometers per hours. 1 Upon reaching the intersection of 4th West
Street their car collided with a 1975 4-door Toyota Corona sedan with plate number PMD 711 owned and driven by
Gregorio Martinez. Martinez had just attended a Loved Flock meeting with his daughter Sahlee 2 and was coming from
the eastern portion of Quezon Avenue near Delta Circle. He was then executing a U-turn at the speed of 5 kph at the
north-west portion of Quezon Avenue going to Manila when the accident occurred.

The collision flung the Corona twenty (20) meters southward from the point of impact causing it to land atop the center
island of Quezon Avenue. The Galant skittered southward on Quezon Avenue’s western half leaving its left rear about
four (4) meters past the Corona’s right front side. The principal points of contact between the two (2) cars were the
Galant’s left front side and the Corona’s right front door including its right front fender.

Both petitioner and Martinez claimed that their lanes had green traffic lights 3 although the investigating policeman
Marcelo Sabido declared that the traffic light was blinking red and orange when he arrived at the scene of the accident
an hour later. 4

Sahlee Martinez, who was seated on the Corona’s right front seat, sustained physical injuries which required
confinement and medical attendance at the National Orthopaedic Hospital for five (5) days. As a result she missed
classes at St. Paul’s College for two (2) weeks. 5 Petitioner and his friends were treated at the Capitol Medical Center for
their injuries.

Ruling:

As such, we find no reason to disturb their findings. It bears to stress that the appreciation of petitioner’s post-collision
behavior serves only as a means to emphasize the finding of negligence which is readily established by the admission of
petitioner and his friend Renato that they saw the car of Martinez making a U-turn but could not avoid the collision by
the mere application of the brakes. 15 Negligence is the want of 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. 16

What degree of care and vigilance then did the circumstances require? At half past 1:00 o’clock in the morning along an
almost deserted avenue, ordinary care and vigilance would suffice. This may consist of keeping a watchful eye on the
road ahead and observing the traffic rules on speed, right of way and traffic light.

The claim of petitioner that Martinez made a swift U-turn which caused the collision is not credible since a U-turn is
done at a much slower speed to avoid skidding and overturning, compared to running straight ahead. Nonetheless, no
evidence was presented showing skid marks caused by the car driven by Martinez if only to demonstrate that he was
driving at a fast clip in negotiating the U-turn.

On the other hand, the speed at which petitioner drove his car appears to be the prime cause for his inability to stop his
car and avoid the collision. His assertion that he drove at the speed of 40 kph. is belied by Martinez who testified that
when he looked at the opposite lane for any oncoming cars, he saw none; then a few seconds later, he was hit by
Adzuara’s car. The extent of the damage on the car of Martinez and the position of the cars after the impact further
confirm the finding that petitioner went beyond the speed limit required by law and by the circumstances. 18

It is a rule that a motorist crossing a thru-stop street has the right of way over the one making a U-turn. But if the person
making a U-turn has already negotiated half of the turn and is almost on the other side so that he is already visible to the
person on the thru-street, the latter must give way to the former.

Petitioner was on the thru-street and had already seen the Martinez car. 19 He should have stopped to allow Martinez
to complete the U-turn having, as it were, the last clear chance to avoid the accident which he ignored. In fact, he never
stopped. Rather, he claimed that on the assumption that he was negligent, the other party was also guilty of
contributory negligence since his car had no lights on. 20 The negligence of Martinez however has not been satisfactorily
shown.

Petitioner insists that the traffic light facing him at the intersection was green which only indicated that he had the right
of way. But the findings of the court a quo on the matter countervail this stance, hence, we see no reason to disturb
them.

To weaken the evidence of the prosecution, petitioner assails the testimony of Martinez as being replete with
inconsistencies. The records however reveal that these inconsistencies refer only to minor points which indicate veracity
rather than prevarication by the witness. They tend to bolster the probative value of the testimony in question as they
erase any suspicion of being rehearsed.

Finally, petitioner claims that the medical certificate presented by the prosecution was uncorroborated by actual
testimony of the physician who accomplished the same and as such has no probative value insofar as the physical
injuries suffered by Sahlee are concerned. Regretfully, we cannot agree. The fact of the injury resulting from the collision
may be proved in other ways such as the testimony of the injured person. In the case at bar, Sahlee Martinez testified
that her injuries as described in the medical certificate were caused by the vehicular accident of 17 December 1990. 22
This declaration was corroborated by Gregorio. 23 This, no less, is convincing proof.

II.PLACE

3. PEOPLE vs. Cusi, CA 68 O.G. 2777

Facts:

Between six and seven in the evening of May 6, 1936, when Gelasio Dimatatac was about to sit down and dine with his
family in their house in the barrio of Danglayan, municipality of Bauang, Batangas, Paulina Labingdalawa came and told
him that his niece, Maria Lopez, urgently called for him. Gelasio asked why his niece was sending for him, and Paulina
answered that show did not know. Thereupon, Gelasio, followed by his sons, Horacio and Crisanto, of ten and six years
of age, respectively, and his wife, Marcela Magbuhat, went to the house of Maria, which was some eighty meters from
their own.

On arrival and when he asked her niece why she had called for him, Maria answered that her husband, Juan Wagan, was
driving her out of the house, which was denied by Juan. Gelasio Dimatatac then told her to have patience as that was
her luck and that they live in peace. Marcela thereafter invited her husband to return home because supper was
becoming cold, to which Gelasio agreed, saying, "Yes, let us go" and led the way.

After descending the stairs, a detonation was heard, produced by a shot fired from a paltic (a locally made revolver) by
Andres Wagan at Gelasio Dimatatac, wounding him on the chest. Wagan shot Gelasio at a distance of eight meters
through an open window, from a position outside of the store under the house. Feeling himself wounded, Gelasio
covered his chest with both hands, exclaiming, "My mother, I am dying", and staggering towards the kitchen of the
store, where the said accused, Wagan, who had moved to the door of the store, fired at him again from outside,
followed immediately by another shot aimed at the same victim from the west side of the kitchen where Gelasio fell to
the ground.

The third shot was fired from the outside of the kitchen by the other accused, Mariano Cusi, who immediately ran away
with Andres Wagan towards the west, passing by Maximo Mendoza and each carrying a paltic.

Gelasio Dimatatac died in the Batangas Provincial Hospital around 8:30 on that same night from the internal
hemorrhage caused by the three mortal bullet wounds, according to the report of Dr. Ricardo Jara.

The accused could not be found in their houses on that night, but on the following morning they were arrested in the
house of Rafael Orosa in another barrio of the town of Bauang, known as Aplaya. After their hands were examined on
May 7 and 8 by Arcadio Laperal, ballistic expert of the Manila police department, nitrogen deposits were found on the
back of the right hand of Andres Wagan and on that of the index finger of the right hand of Mariano Cusi. According to
the expert, the presence of this substance showed that said hands of the appellants had been in contact with
gunpowder deposits as a result of the discharge of firearms.

It should be noted that Andres Wagan is the brother-in-law of his co-accused, Mariano Cusi, his sister being the wife of
the latter, and Mariano had a grudge against Gelasio Dimatatac resulting from a case which the former instituted against
the latter regarding a parcel of land, Mariano having told Luis Castillo, on March 20, 1936, that Gelasio had destroyed his
banana and other plants on the land in litigation, and he (Mariano Cusi) would kill Gelasio as soon as he met him.
RULING:

Considering that the accused Andres Wagan shot the deceased from outside the store of his brother, Juan Wagan, at a
distance of eight meters, when Dimatatac had scarcely set his foot on the ground while descending the stairs of the
house shortly after an unpleasant conversation which took place therein, circumstances amply showing that the
deceased unexpectedly received the first shot, the intention of the accused Andres Wagan to kill him without risk to
himself, becomes evident. Said intention becomes the more evident by the fact that, although Dimatatac was already
badly wounded on the chest and while he staggered towards the kitchen, still his aggressor pursued him, moving from
the outer window of the store to the door of the same (as may be seen graphically illustrated in the sketch, Exhibit D),
and from there fired his paltic for the second time. All these circumstances indisputably disclose the treachery which
qualified the crime of murder (U.S. vs. Gil, 13 Phil., 530; U.S. vs. Baluyot, 40 Phil., 385).

As to Mariano Cusi, the presence of said circumstance is also clearly shown by the fact that he fired at Dimatatac
through the kitchen wall from outside, where he was hidden from Dimatatac's view, and while the latter was already
staggering from the bullet wounds inflicted by Andres Wagan.

The theory that Andres Wagan acted in defense of his brother, Juan, who was allegedly being attacked with a barong  or
bolo by Gelasio Dimatatac when he arrived to aid him, is without merit as the established facts show that Gelasio
Dimatatac was not armed on that night, and the policemen, who inspected the scene of the crime found
neither barong nor bolo, but only blood stains on the ground, wads, buckshots, blank cartridges, and a hole on the nipa
wall of the kitchen through which a person could be seen from the outside.

The nearly one-inch scar on the left side of Andres Wagan's forehead, allegedly that of a wound caused by the point of
Dimatatac's bolo when the latter attacked him, which attack would have killed him, so he says, but for the fact that only
the point of the bolo, which hit the wall, reached him, is a kind of evidence that proves its own falsity, for if the bolo hit
the wall, its point could not have struck Wagan. Moreover, the evidence does not disclose the part of the wall on which
Dimatatac's bolo blow landed.

As to the wound on the neck of Juan Wagan, it was established by the prosecution that the same was not inflicted by
Gelasio Dimatatac, as the defense of Andres Wagan alleged, but by Juan Velasquez, who testified that, on being
informed by Horacio Dimatatac of the bloody incident of which his grandfather Gelasio was the victim, he ran with his
bolo to the store of Juan Wagan and asked the latter what he had done with his grandfather and that as Juan answered
him in a threatening manner, with a knife in hand, Juan Velasquez attacked him with his bolo, inflicting on him the
wound above-mentioned, and reported the matter to the chief of police on that same night.

Moreover, Juan Wagan testified that when Dimatatac struck him with his bolo, he was seated in a lancape, and
according to Dr. Jara, the position of the wound of this witness shows that the aggressor was on the same level as the
person attacked so that Dimatatac could not have been the aggressor, but another person who was standing like Juan
Wagan at the time he was attacked. This statement corroborates the testimony of Juan Velasquez.

We find absolutely no basis in the evidence adduced by Mariano Cusi to establish an alibi.

Why the two accused treacherously attacked the deceased has been amply demonstrated by the evidence for the
prosecution which shows that Mariano Cusi hated Dimatatac because of the civil case hereinbefore mentioned and of
Dimatatac's act of cutting the plants on the land in litigation, so much so that Cusi told Luis Castillo a month and a half
before the crime, that he would kill his enemy as soon as he met him. The disagreeabe incident transpired in the house
of Juan Wagan to which Gelasio Dimatatac had been called by his niece, and on learning thereof, the accused, whose
houses are not far from that of Juan Wagan, available of the occasion to satisfy Cusi's desire for revenge.

The circumstance that it does not appear which of the wounds of the deceased had been respectively caused by each of
the accused, is of no moment, inasmuch as, according to Dr. Jara, all of them produced the internal hemorrhage which
resulted in the death of the deceased.

We do not find that the aggravating circumstance of evident premeditation, which the lower court took into account,
has been satisfactorily established, and considering only the mitigating circumstance of lack of instruction in favor of the
accused, the defendants are hereby sentenced to the penalty next lower in degree than that prescribed for the crime of
murder in article 248, No. 1, of the Revised Penal Code, or prision mayor in its maximum period to reclusion temporal in
its medium period.

III. Gravity of Harm to be Avoided

4. Junio v. Manila Railroad Company 58 Phil 176 (1933)

Facts:

At about 11:40 o'clock on the night of April 13, 1930, the plaintiffs herein with some other persons were traveling in a
PU-Car on the road between Calasiao and Santa Barbara. When they arrived at the intersection of the road of the
defendant's railway, the car tried to cross the track and collided while the engine of the night express which left
Dagupan for Manila at 11 o'clock that same night and which was then passing over the crossing in question at great
speed. As a result of the collision, the car was thrown some distance, plaintiff Junio's right leg was amputated and her
right arm fractured, and Soloria received various injuries on her head.

The aforementioned crossing is situated in the town of Calasiao and the same is presumed to be dangerous due to the
fact that gates were required at that crossing. (Section 83, Act No. 1459, as amended by Act No. 2100.) On the night of
the accident, the gates were not lowered and there was no notice to the effect that they were not operated at night or
that they were temporarily out of order. However, a notice to the effect that that was a railroad crossing was there.

As a general rule, the rights and obligations between the public and a railroad company at a public crossing are mutual
and reciprocal. Both are under mutual obligation to exercise due care to avoid causing or receiving injury. Each is in duty
bound to exercise reasonable or ordinary care commensurate with the risk and danger involved.

In the case under consideration, the driver alleges that he slowed down from 19 miles an hour, at which rate he was
then going, to 16 miles, and that he was on the lookout for any approaching train, while the engineer insists that he rang
the bell and sounded the whistle before reaching the crossing. Both parties claim to be free from guilt, and if the
defendant company were completely so, the plaintiffs would have no cause of action against it.

Ruling:

From the evidence, it is obvious that the defendant as well as the driver of the car in which the plaintiffs were
passengers were negligent, the former because, by installing the gates at the place or crossing where the accident
occurred, it had voluntarily imposed upon itself the obligation to operate them even at night and to close them every
time a train passed in order to avoid causing injury to the public. It has been said that the gates constitute an invitation
to the public to pass without fear of danger, and failure to operate them conveniently constitutes negligence on the part
of the company.

The driver was, likewise, negligent because he did not comply with his duty to slacken the speed of the car and to "look
and listen" before crossing the intersection and above all, because he did not maintain a reasonable speed so as to
permit him to stop any moment if it were necessary in order to avoid an accident. If, in the present case, the car had
been running at a reasonable speed, there is no doubt that he could have stopped it instantly upon seeing the train from
a distance of five meters.

If the action for damages were brought by the driver, it is certain that it would not prosper in view of the fact that he
had incurred in a notorious contributory negligence. But the persons who instituted the action are the appellants who
were mere passengers of the car. Therefore, the question raised is whether the driver's negligence is imputable to them
so as to bar them from the right to recover damages suffered by them by reason of the accident.

Although this question is, perhaps, raised in this jurisdiction for the first time, it is, nevertheless, a well-recognized
principle of law that the negligence of a driver, who, in turn, is guilty of contributory negligence, cannot be imputed to a
passenger who has no control over him in the management of the vehicle and with whom he sustains no relation of
master and servant. This rule is applied more strictly when, as in the present case, hired cars or those engaged in the
public service, are involved.

The doctrine prevails in a few states that the contributory negligence of the driver of a private conveyance is
imputable to a person voluntarily riding with him. But the general rule is that the negligence of the driver of a
 vehicle is not to be imputed to an occupant thereof who is ]injured at a crossing through the combined
negligence of the driver and the railroad company when such occupant is without fault and has no control over
the driver.

And the law almost universally now recognized is that when one accepts an invitation to ride in the vehicle of
another, without any authority or purpose to direct or control the driver or the movements of the team, and
without any reason to doubt the competency of the driver, the contributory negligence of the owner or driver of
the conveyance will not be imputed to the guest or passenger, so as to bar him of the right to recover damages
from a railroad company whose negligence occasions injury to him at a crossing while he is so riding.

This rule has been applied in a number of cases involving the corresponding relation between the driver of an
automobile and an occupant having no control over him. The rule is not confined to cases of gratuitous
transportation, but has been applied where a conveyance is hired, and the passenger exercises no further
control over the driver than to direct him to the place to which he wishes to be taken.

Nor is any distinction made between private and public vehicles, such as street cars and stages. (22 R. C. L., pp.
1047, 1048.)chanrobles virtual law library

As a general rule the negligence of a driver of a vehicle approaching a railroad crossing, in failing to look and
listen for approaching trains, cannot be imputed to an occupant of the vehicle who is without personal fault,
unless such driver is the servant or agent of the occupant, unless they are engaged in a joint enterprise whereby
responsibility for each other's acts exists, or unless the occupant is under the driver's care or control or has the
right to direct and control the driver's actions, or where the driver is of obvious or known imprudence or
incompetency.

This rule that negligence of the driver is not imputable to an occupant only applies to cases in which the relation
of master and servant or principal and agent does not exist between the parties, or where the occupant has no
right to direct or control the driver's action, as where the occupant is a passenger for hire or is the guest of the
owner or driver and has no reason to believe the driver careless or imprudent, or where the occupant is seated
away from the driver or is separated from him by an enclosure so that he is without opportunity to discover
danger and inform the driver thereof. . . . (52 C.J., pp. 315, 316 and 317.)

A passenger in the automobile of another having no control over the owner driving the car or the operation of
the car which he occupied merely as passenger was not chargeable with contributory negligence of the owner
and driver at a railroad crossing. (Carpenter vs. Atchison 195 Pac, 1073).

In railroad crossing accident, negligence of truck driver was not imputable to truck passenger not himself guilty
of contributory negligence. (Lucchese vs. Spingola, 289 Pac., 189.)

In the case of Little vs. Hackett (116 U.S. 366; 29 Law. ed., 652, 654, 657), the United States Supreme Court said:

That one cannot recover damages for an injury to the commission of which he has directly contributed is a rule
of established law and a principle of common justice.

And it matters not whether that contribution consists in his participation in the direct cause of the injury, or in
his omission of duties which, if performed, would have prevented it. If his fault, whether of omission or
commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong.

It would seem that the converse of this doctrine should be accepted as sound; that when one has been injured
by the wrongful act of another, to which he has in no respect contributed, he should be entitled to
compensation in damages from the wrongdoer.

And such in the generally received doctrine, unless a contributory cause of the injury has been the negligence or
fault of some person towards whom he sustains the relation of superior or master, in which case the negligence
is imputed to him, though he may not have personally participated in or had knowledge of it; and he must bear
the consequences. the doctrine may also be subject to other exceptions growing out of the relation of parent
and child, or guardian and ward, and the like.

Such a relation involves considerations which have no bearing upon the question before us.
 There is no distinction in principle whether the passengers be on a public conveyance like a railroad train or an
omnibus or be on a hack hired from a public stand in the street for a drive. Those on hack do not become
responsible for the negligence of the driver, if they exercise no control over him further than to indicate the
route they wish to travel or the places to which they wish to go.

If he is their agent so that this negligence can be imputed to them to prevent their recovery against a third party,
he must be their agent in all other respects, so far as the management of the carriage is concerned; and
responsibility to third parties would attach to them for injuries caused by his negligence in the course of his
employment. But as we have already stated, responsibility cannot, within any recognized rules of law, be
fastened upon one who has in no way interfered with and controlled in the matter causing the injury.

From the simple fact of hiring the carriage or riding in it no such liability can arise. The party hiring or riding must
in some way have cooperated in producing the injury complained of before he incurs any liability for it.

"If the law were otherwise," as said by Mr. Justice Depue in his elaborate opinion in the latest case in New
Jersey, "not only the hirer of the coach but also all the passengers in it would be under a constraint to mount the
box and superintend the conduct of the driver in the management and control of his team, or be put for remedy
exclusively to an action against the irresponsible driver or equally irresponsible owner of a coach taken, it may
be, from a coach stand, for the consequences of an injury which was the product of the cooperating wrongful
acts of the driver and a third person; and that too, although the passengers were ignorant of the character of
the driver, and of the responsibility of the owner of the team, and strangers to the route over which they were
to be carried." (18 Vroom, 171.)"

There is nothing of record to show that the appellants herein have incurred in any negligence imputable to them and we
do not see any reason whatsoever why they should be made responsible for the driver's negligence. The doctrine
established in the cases cited above should be applied to the case at bar and it should be held that the appellants herein
are entitled to recover from the appellee damages occasioned by the accident of which they were victims.

IV. Social Value or Utility of Activity

5. Manila Electric Co. vs. Remoquillo

Facts:

 Efren Magno went to the 3-story house of Antonio Peñaloza, his stepbrother, located on Rodriguez Lanuza Street,
Manila, to repair a “media agua” said to be in a leaking condition. The “media agua” was just below the window of the
third story. Standing on said “media agua”, Magno received from his son thru that window a 3’ X 6’ galvanized iron sheet
to cover the leaking portion, turned around and in doing so the lower end of the iron sheet came into contact with the
electric wire of the Manila Electric Company (later referred to as the Company) strung parallel to the edge of the “media
agua” and 2 1/2 feet from it, causing his death by electrocution. His widow and children fled suit to recover damages
from the company.

The findings of fact made by the Court of Appeals which are conclusive are stated in the following portions of its decision
which we reproduce below:

“The electric wire in question was an exposed, uninsulated primary wire stretched between poles on the street
and carrying a charge of 3,600 volts. It was installed there some two years before Peñaloza’s house was
constructed. The record shows that during the construction of said house a similar incident took place, although
fortunate]y with much less tragic consequences. A piece of wood which a carpenter was holding happened to
come in contact with the same wire, producing some sparks. The owner of the house forthwith complained
to Defendant about the danger which the wire presented, and as a result Defendant moved one end of the wire
farther from the house by means of a brace, but left the other end where it was.

“At any rate, as revealed by the ocular inspection of the premises ordered by the trial court, the distance from
the electric wire to the edge of the ‘media agua’ on which the deceased was making repairs was only 30 inches
or 2 1/2 feet. Regulations of the City of Manila required that ‘all wires be kept three feet from the
building.’ Appellant contends that in applying said regulations to the case at bar the reckoning should not be
 from the edge of the ‘media agua’ but from the side of the house and that, thus measured, the distance was
almost 7 feet, or more then the minimum prescribed. This contention is manifestly groundless, for not only is a
‘media agua’ an integral part of the building to which it is attached but to exclude it in measuring the distance
would defeat the purpose of the regulation. 

Appellant points out, nevertheless, that even assuming that the distance, within the meaning of the city
regulations, should be measured from the edge of the ‘media agua’, the fact that in the case of the house
involved herein such distance was actually less than 3 feet was due to the fault of the owner of said house,
because the city authorities gave him a permit to construct a ‘media agua’ only one meter or 39 1/2 inches wide,
but instead he built one having a width of 65 3/4 inches, 17 3/8 inches more than the width permitted by the
authorities, thereby reducing the distance to the electric wire to less than the prescribed minimum of 3 feet.

“It is a fact that the owner of the house exceeded the limit fixed in the permit given to him by the city
authorities for the construction of the ‘media agua’, and that if he had not done so Appellants wire would have
been 11 3/8 (inches) more than the required distance of three feet from the edge of the ‘media agua’. It is also a
fact, however, that after the ‘media agua’ was constructed the owner was given a final permit of occupancy of
the house.

“The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was, according to Appellant,
no insulation that could have rendered it safe, first, because there is no insulation material in commercial use for
such kind of wire; and secondly, because the only insulation material that may be effective is still in the
experimental stage of development and, anyway, its costs would be prohibitive… ”

The theory followed by the appellate court in finding for the Plaintiff is that although the owner of the house in
constructing the “media agua” in question exceeded the limits fixed in the permit, still, after making that “media agua”,

its construction though illegal, was finally approved because he was given a final permit to occupy the house;

that it was the company that was at fault and was guilty of negligence because although the electric wire in
question had been installed long before the construction of the house and in accordance with the ordinance
fixing a minimum of 3 feet, mere compliance with the regulations does not satisfy the requirement of due
diligence nor avoid the need for adopting such other precautionary measures as may be warranted; 

that negligence cannot be determined by a simple matter of inches; that all that the city did was to prescribe
certain minimum conditions and that just because the ordinance required that primary electric wires should be
not less than 3 feet from any house, the obligation of due diligence is not fulfilled by placing such wires at a
distance of 3 feet and one inch, regardless of other factors.

Ruling:

After a careful study and discussion of the case and the circumstances surrounding the same, we are inclined to agree to
the contention of Petitioner Company that the death of Magno was primarily caused by his own negligence and in some
measure by the too close proximity of the “media agua” or rather its edge to the electric wire of the company by reason
of the violation of the original permit given by the city and the subsequent approval of said illegal construction of the
“media agua”.

We fail to see how the Company could be held guilty of negligence or as lacking in due diligence. Although the city
ordinance called for a distance of 3 feet of its wires from any building, there was actually a distance of 7 feet and 2 3/4
inches of the wires from the side of the house of Peñaloza.

Even considering said regulation distance of 3 feet as referring not to the side of a building, but to any projecting part
thereof, such as a “media agua”, had the house owner followed the terms of the permit given him by the city for the
construction of his “media agua”, namely, one meter or 39 3/8 inches wide, the distance from the wires to the edge of
said “media agua” would have been 3 feet and 11 3/8 inches.
In fixing said one-meter width for the “media agua” the city authorities must have wanted to preserve the distance of at
least 3 feet between the wires and any portion of a building.

Unfortunately, however, the house owner disregarding the permit, exceeded the one meter fixed by the same by 17 3/8
inches and leaving only a distance of 2 1/2 feet between the “Media agua” as illegally constructed and the electric wires.
And added to this violation of the permit by the house owner, was its approval by the city through its agent, possibly an
inspector.

Surely we cannot lay these serious violations of a city ordinance and permit at the door of the Company, guiltless of
breach of any ordinance or regulation. The Company cannot be expected to be always on the lookout for any illegal
construction which reduces the distance between its wires and said construction, and after finding that said distance of
3 feet had been reduced, to change the stringing or installation of its wires so as to preserve said distance.

It would be much easier for the City, or rather it is its duty, to be ever on the alert and to see to it that its ordinances are
strictly followed by house owners and to condemn or disapprove all illegal constructions. Of course, in the present case,
the violation of the permit for the construction of the “media agua” was not the direct cause of the accident.

It merely contributed to it. Had said “media agua” been only one-meter-wide as allowed by the permit, Magno standing
on it, would instinctively have stayed closer to or hugged the side of the house in order to keep a safe margin between
the edge of the “media agua” and the yawning 2-story distance or height from the ground, and possibly if not probably
avoided the fatal contact between the lower end of the iron sheet and the wires.

We realize that the presence of the wires in question quite close to the house or its “media agua” was always a source of
danger considering their high voltage and uninsulated as they were, but the claim of the company and the reasons given
by it for not insulating said wires were unrefuted as we gather from the findings of the Court of Appeals, and so we have
to accept them as satisfactory.

Consequently, we may not hold said company as guilty of negligence or wanting in due diligence in failing to insulate
said wires. As to their proximity to the house it is to be supposed that distance of 3 feet was considered sufficiently safe
by the technical men of the city such as its electrician or engineer. Of course, a greater distance of say 6 feet or 12 feet
would have increased the margin of safety but other factors had to be considered such as that the wires could not be
strung or the posts supporting them could not be located too far toward the middle of the street.

Thus, the real cause of the accident or death was the reckless or negligent act of Magno himself. When he was called by
his stepbrother to repair the “media agua” just below the third story window, it is to be presumed that due to his age
and experience he was qualified to do so.

Perhaps he was a tinsmith or carpenter and had training and experience for the job. So, he could not have been entirely
a stranger to electric wires and the danger lurking in them. But unfortunately, in the instant care, his training and
experience failed him, and forgetting where he was standing, holding the 6-feet iron sheet with both hands and at arm’s
length, evidently without looking, and throwing all prudence and discretion to the winds, he turned around swinging his
arms with the motion of his body, thereby causing his own electrocution.

In support of its theory and holding that Defendant-Appellant was liable for damages the Court of Appeals cites the case
of Astudillo vs. Manila Electric Co., 55 Phil., 427. We do not think the case is exactly applicable. There, the premises
involved was that elevated portion or top of the walls of Intramuros, Manila, just above the Sta. Lucia Gate. In the words
of the Court, it was “a public place where persons come to stroll, to rest and to enjoy themselves”.

The electric company was clearly negligent in placing its wires so near the place that without much difficulty or exertion,
a person by stretching his hand out could touch them. A boy named Astudillo, placing one foot on a projection, reached
out and actually grasped the electric wire and was electrocuted. The person electrocuted in said case was a boy who was
in no position to realize the danger.

In the present case, however, the wires were well high over the street where there was no possible danger to
pedestrians. The only possible danger was to persons standing on the “media agua”, but a “media agua” can hardly be
considered a public place where persons usually gather. Moreover, a person standing on the “media agua” could not
have reached the wires with his hands alone. It was necessary as was done by Magno to hold something long enough to
reach the wire.

Furthermore, Magno was not a boy or a person immature but the father of a family, supposedly a tinsmith trained and
experienced in the repair of galvanized iron roofs and “media agua”. Moreover, in that very case of Astudillo vs. Manila
Electric Co., supra, the court said that although it is a well- established rule that the liability of electric companies for
damages or personal injuries is governed by the rules of negligence, nevertheless such companies are not insurers of the
safety of the public.

But even assuming for a moment that under the facts of the present case the Defendant electric company could be
considered negligent in installing its electric wires so close to the house and “media agua” in question, and in failing to
properly insulate those wires (although according to the unrefuted claim of said company it was impossible to make the
insulation of that kind of wire), nevertheless to hold the Defendant liable in damages for the death of Magno, such
supposed negligence of the company must have been the proximate and principal cause of the accident, because if the
act of Magno in turning around and swinging the galvanized iron sheet with his hands was the proximate and principal
cause of the electrocution, then his heirs may not recover.

Such was the holding of this Court in the case of Taylor vs. Manila Electric Railroad and Light Company, 16 Phil., 8. In that
case, the electric company was found negligent in leaving scattered on its premises fulminating caps which Taylor, a 15-
year old boy found and carried home. In the course of experimenting with said fulminating caps, he opened one of
them, held it out with his hands while another boy applied a lighted match to it, causing it to explode and injure one of
his eyes eventually causing blindness in said eye. Said this Tribunal in denying recovery for the injury:

“, so that while it may be true that these injuries would not have been incurred but for the negligent act of
the Defendant in leaving the caps exposed on its premises, nevertheless Plaintiff’s own act was the proximate
and principal cause of the accident which inflicted the injury.”

To us it is clear that the principal and proximate cause of the electrocution was not the electric wire, evidently a remote
cause, but rather the reckless and negligent act of Magno in turning around and swinging the galvanized iron sheet
without taking any precaution, such as looking back toward the street and at the wire to avoid its contacting said iron
sheet, considering the latter’s length of 6 feet. For a better understanding of the rule on remote and proximate cause
with respect to injuries, we find the following citation helpful:

“A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than
furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened
between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the
injury, even though such injury would not have happened but for such condition or occasion. If no danger
existed in the condition except because of the independent cause, such condition was not the proximate cause.
And if an independent negligent act or defective condition sets into operation the circumstances which result in
injury because of the prior defective condition, such subsequent act or condition is the proximate cause.”
(45 C.J. pp. 931-332.).

We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and so close to houses is a constant
source of danger, even death, especially to persons who having occasion to be near said wires, do not adopt the
necessary precautions.

But maybe, the City of Manila authorities and the electric company could get together and devise means of minimizing
this danger to the public. Just as the establishment of pedestrian lanes in city thoroughfares may greatly minimize
danger to pedestrians because drivers of motor vehicles may expect danger and slow down or even stop and take other
necessary precaution upon approaching said lanes, so, a similar way may possibly be found.

Since these high voltage wires cannot be properly insulated and at reasonable cost, they might perhaps be strung only
up to the outskirts of the city where there are few houses and few pedestrians and there step-down to a voltage where
the wires carrying the same to the city could be properly insulated for the better protection of the public.
6. National Irrigation Administration vs IAC (214 SCRA 35, 39 (1992)

Facts:

petitioner National Irrigation Administration (NIA for brevity) constructed an irrigation canal on the property of Isabel
and Virginia Tecson which passed through the private respondents’ landholdings as said irrigation canal traverses the
Cinco-Cinco Creek which abuts said landholding. The irrigation canal has two (2) outlets which provide private
respondents’ landholdings with water coming from said canal and at the same time serve to drain the excess water of
said landholdings.

On February 13, 1975, private respondents filed a complaint for the abatement of nuisance with damages against
petitioners NIA and/or the Administrator of the National Irrigation Administration alleging that the two (2) outlets
constructed on both sides of the irrigation canal were not provided with gates to regulate the flow of water from the
canal to their landholdings which resulted to the inundation of said landholdings causing the former to sustain damages
consisting in the destruction of the planted palay crops and also prevented them from planting on their landholdings.

Ruling:

Petitioners are in error. As correctly ruled by the court below, the NIA "is not immune from suit, by virtue of the express
provision of P.D. No. 552." 4

A reading of Section 2, sub-paragraph (f) of P.D. No. 552, 5 amending Republic Act No. 3601 shows the granting to NIA
the power "to exercise all the powers of a corporation under the Corporation Law, insofar as they are not inconsistent
with the provisions of this Act." Paragraph 4 of said law also provide that petitioner NIA may sue and be sued in court for
all kind of actions, whether contractual or quasi-contractual, in the recovery of compensation and damages as in the
instant case considering that private respondents’ action is based on damages caused by the negligence of petitioners.
This Court had previously held that "the National Irrigation Administration is a government agency with a juridical
personality separate and distinct from the government. It is not a mere agency of the government but a corporate body
performing proprietary functions" 6 as it has its own assets and liabilities as well as its own corporate powers to be
exercised by a Board of Directors.chan

Paragraph 6, Article 2180 of the Civil Code of the Philippines states that:

"The State is responsible in like manner when it acts through a special agent; but not when the damage has been
caused by the official to whom the task done properly pertains, in which case what is provided in article 2176
shall be applicable."cralaw virtua1aw library

Article 2176 of said Code provides that:

"Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.”

Thus, petitioners are liable for the damages caused by their negligent act. Said the trial court:

"On the issue of negligence, plaintiffs through the testimonies of Andres Ventura, Florentino Ventura and
Prudencio Martin showed that the NIA constructed irrigation canals on the landholding[s] of the plaintiffs by
scrapping away the surface of the landholding[s] to raise the embankment of the canal. As a result of the said
construction, in 1967 the landholdings of the plaintiffs were inundated with water.

Although it cannot be denied that the irrigation canal of the NIA is a boon to the plaintiffs, the delay of almost 7
years in installing the safety measures such as check gates, drainage[s], ditches and paddy drains has caused
substantial damage to the annual harvest of the plaintiffs.
 In fact, Engineer Garlitos, witness for the defendant declared that these improvements were made only after the
settlement of the claim of Mrs. Virginia Tecson, which was sometime in 1976 or 1977, while the irrigation canal
was constructed in 1976 [1967].

The testimonies of the plaintiffs essentially corroborated by a disinterested witness in the person of Barangay
Captain Prudencio Martin, proved that the landholdings of the complainants were inundated when the NIA
irrigation canal was constructed without safety devises thereby reducing their annual harvest of 30 cavans per
hectare (portions flooded).

The failure [,] therefore, of the NIA to provide the necessary safeguards to prevent the inundation of plaintiffs’
landholding[s] is the proximate cause of the damages to the poor farmers. On the other hand, the defendant
maintains that the cause of inundation of plaintiffs’ landholdings was the check gate of the Cinco-cinco creek
known as Tombo check gate.

However, evidence showed that this check gate existed long before the NIA irrigation canal was constructed and
there were no complaints from the plaintiffs until the canal of the NIA was built. The uncontested testimony of
barrio captain Prudencio Martin that the former name of the sitio where the plaintiffs’ landholdings were
located was "Hilerang Duhat" but was changed to Sitio Dagat-dagatan because of the inundation was not
without justification." 

With regard to petitioners’ contention that the respondent appellate court erred in awarding damages to private
respondents, we find said court’s decision in accordance with the evidence and the law. As correctly held by the
appellate court:

"It has been established that the plaintiffs’ landholdings were actually inundated. The testimonies by all the
plaintiffs with respect to the amount of the loss they suffered were not impugned by any contradictory evidence
of the defendant. To Our mind, these testimonies are sufficient proof to make the grant of damages valid and
proper. Besides, the amount awarded by the lower court is but just and reasonable considering the
circumstances of the case."

V.Person Exposed to the Risk

7. United States vs. Clemente G.R. No. L-8142, January 25, 1913

Facts:

Enrique Clemente, at the time being and acting as motorman of a street car No. 111 upon the line Pasay-Cervantes of
the Manila Electric Railroad and Light Company, a corporation duly organized and doing business in the city of Manila,
Philippine Islands, and then and there directing and operating said street car, as the motorman thereof, upon and along
Dakota Street in said city, and then and there being under the obligation as such motorman of said street car to conduct
and direct the same with due care and caution, in order to avoid any accident which might occur to the vehicles and
pedestrians who were passing upon and over said Dakota Street, with reckless imprudence and with inexcusable
negligence and in violation of the ordinance pertaining to the matter, conducted and directed said street car, without
paying any attention to the pedestrians who were crossing said street of his lack of care and reckless negligence he
directed and conducted street car No. 111 against and over the body and head of Juan Garcia, a child 3 years of age,
who was then and there passing across the said Dakota Street, dragging the body of said child over said street-car track
for a considerable distance, fracturing and destroying its skull and causing instant death. That if said acts thus performed
by the accused had been done with malice or intentionally he would be guilty of the grave crime of homicide.

Ruling:

The appellant in this case makes two contentions: First, that the trial court had no right to find as a fact that the
defendant had violated an ordinance of the city of Manila, for the reason that said ordinance was not introduced in
evidence and there was no proof of its existence, a court of general jurisdiction having no power or authority to take
judicial notice of the existence of a municipal ordinance or of the contents of an ordinance admittedly existing. Second,
that even though the right of the court be conceded to take judicial notice of the existence or contents of a municipal
ordinance, still in this case there was no evidence to support the finding that such ordinance had been violated.

The rule of law laid down by the appellant in his first contention, if applicable at all to the Philippine Islands, a question
which we do not now decide, is based upon the ground that courts of general jurisdiction are not required to enforce
municipal ordinances, and therefore there exists no reason why they should take judicial notice of them. The legal
proposition at the base of the doctrine contended for by the appellant is, that courts will take judicial notice only of
those laws which they are required by law to enforce. This rule even if applicable in this country, does not apply in this
case for the reason that, under article 568 of the Penal Code, paragraph 2, courts of general jurisdiction are required in a
manner of speaking, to enforce municipal ordinances, their violation being an integral and essential part of the crime
defined in that paragraph. The paragraph referred to reads as follows:

Any person who, while violating any regulation, shall, by any act of imprudence or negligence not amounting to
reckless imprudence, commit an offense, shall suffer the penalty of arresto mayor in its medium and maximum
degree.

For the proper enforcement of this paragraph, knowledge of municipal ordinances on the part of the court is necessary,
as they become a part of the general law which the courts are called upon to administer in this class of cases. In order,
therefore, to enforce and administer the law as the duties of his office require, it is essential that a court of general
jurisdiction know the municipal ordinances of the Islands. Being required to know the municipal ordinances, they are at
liberty to take judicial notice of them. If they err in finding the existence of an ordinance when one really does not exist,
or if they make a mistake as to the nature of an ordinance or its provisions, the judgment is subject to correction in the
same manner as when they have erroneously assumed the existence of a law, or the provisions of a law the existence of
which is conceded.

Relative to the second contention of the appellant, namely, that there is no evidence to sustain the finding that the
ordinance was violated, we are of the opinion that it is not well founded. It appears from the record that a number of
witnesses declare that the street car was running "very fast." Others state, including the accused, that the street car was
running with the lever set at "nine points." It is shown by the testimony of other witnesses that a street car under the
propulsion of a current indicated by the lever being placed at nine points would be going about 23 miles an hour.

It appears from the evidence, also, that post No. 961 and post No. 962 are 36.8 meters apart. The street car struck the
child near post No. 961. Although the motorman knew that he had run over a child and, as he claims, did everything in
his power to stop to the car, he was unable to do so until he reached a point opposite to post No. 962. In other words
the car was running at such speed that it required a distance of 36.8 meters in which to stop it.

These facts are sufficient to sustain the finding that the ordinance was violated, it providing that "it shall be unlawful for
any street car to run at a greater speed than 12 miles per hour within the corporate limits of said city."

We are of the opinion that the court below erred in not finding the defendant guilty of homicide committed by reckless
negligence. The evidence seems to us to be overwhelming against him.

A number of witnesses were sworn for the defense. While their testimony tends in some degree to exculpate the
accused, it is not in our judgment sufficient to do so. It has nothing of the directness and force of the evidence
introduced by the prosecution.

It does not meet the proof that Calle Dakota is for a long distance either way from the scene of the accident entirely
straight; that the motorman was able to see the child in the street for a long distance; that, although he could not but
have seen the child within the limits of the highway, with the possibility, if not probability, that it might place itself upon
the track, nevertheless he continued the car at full speed, driving it with the maximum force of the current, without
attempting to reduce it to such control that, if the child should chance to go upon the track, he could protect it by
stopping the car immediately.

It is the duty of any person driving a vehicle in the public thoroughfares to reduce the same control, ready to be stopped
at any moment, if he sees a child below the years of understanding in such place that it can, by any reasonable chance,
place itself in a dangerous position with respect to the vehicle.

In such case the vehicle must be under such control that, if the child, by some sudden or unexpected movement, places
itself in the way of the vehicle, it can be stopped in time to avert injury. No one is able to determine what a child of that
age will do, and it is incumbent upon the driver of a vehicle, on seeing such child in the street, to take such care that, no
matter what, within reasonable limits, the child may do, it will nevertheless be safe.

This defendant, so far as the great preponderance of the evidence is concerned, took no adequate precautions to
prevent the accident which occurred. It is undoubted that he saw the child in the street, very probably making its way
toward the street-car track; yet he continued the car at its maximum speed, without regard to what the child might do.
Such conduct cannot be permitted.

Vehicles cannot be driven in the public streets in such a way as to endanger the life of a child below the thinking age
who have strayed upon the streets in search of its mother, or who may be there for any other reason. Having no
judgment of its own, the drivers of vehicles must substitute their  judgment for its; not having the intelligence to direct
itself, men who drive cars or vehicles must exercise their intelligence. It may be true, as defendant claims, that the child
by a sudden dart placed itself infront of the car, but that is no excuse for the defendant. He should have anticipated that
very thing and should have acted accordingly.

We are convinced, under this evidence, that the defendant should have been convicted of the crime of homicide caused
by his reckless negligence, as charged in the complaint. Of our authority to convict him here and now of that crime,
although he has once been acquitted of it, we do not doubt. (Trono vs. United States, 199 U.S., 5211; Kepner vs. The
United States, 195 U.S., 100.2 

The crime of which the accused was convicted in the court below is included in the crime of homicide by reckless
negligence, as charged and proved in this case.

The Penal Code recognizes and distinguishes three classes of negligence in connection with homicide or other crimes:
First, reckless negligence, which consists in every act of improvidence (lack of foresight), thoughtlessness, carelessness,
negligence, unskillfulness and imprudence, executed or done without taking those precautions or measures which the
most common prudence would require.

For example, discharging a firearm from the window of one's house and killing a neighbor who just at the moment had
leaned over the balcony in front of the house. Leaving a loaded firearm on a chair or other place within the reach of
small children then in the house — one of whom picks it up for the purpose of playing with it, and is skilled by its
discharge. The facts in both of these cases constitute homicide by reckless negligence, because death was produced by
failure to exercise the most ordinary and common care. (Viada, Vol. III, p. 629.)

The second class is that in which the act is performed with simple negligence or imprudence,  i.e., with negligence less
than reckless negligence, but at the same time in violation of some ordinance or other rule enacted by some competent
body for the public good. An illustration: The superintendent of a jail, in a moment of benevolence and by mere
tolerance, permits a prisoner to go out of the jail, who, abusing the confidence and tolerance of the superintendent,
escapes.

In such case, the superintendent has violated the rules and regulations of jails which prohibit him from permitting a
prisoner to leave the jail. The escape of the prisoner, brought about by the superintendent's infraction of the rules

makes him guilty of the crime of infidelity in the custody of prisoners committed by simple imprudence with infraction of
the rules relating to prisons. (Id.)

Finally, the Code recognizes as the third class that in which the negligence can neither be called reckless, because it is
impossible to foresee the evil produced, nor negligence with a violation of rules, because in reality no rules are violated.
It is called simple imprudence or negligence, and is punished as a misdemeanour in paragraph 3 of article 605 (Spanish)
of the Penal Code. An example of this class is presented in a case where the driver of a cart, passing along the street at
the speed prescribed by the ordinance and leading his team by a strap attached to the bridle or head, in a moment of
distraction, on turning a corner, does not see that there is a child asleep in the gutter on the side of the team opposite to
him; by reason whereof the child is run over by the cart and killed.

The act cannot be denominated purely accidental, because, if he had been paying strict attention to his duty, he would
have seen the child and very likely would have been able to avoid the accident. Nor can it be called reckless negligence,
because he was not able to foresee the extremely unusual occurrence of a child being asleep in a gutter. Neither was
there a violation of an ordinance, because he was driving his vehicle entirely in conformity herewith. Such act is
qualified, then, as  simple imprudence or negligence, punishable as a misdemeanour. (Id.)
From these observations, it is apparent that, under the Penal Code, the crime of which the accused was convicted by the
trial court is a lesser offense of the crime of homicide committed by reckless negligence of which the accused was
acquitted. That being the case, an appeal to this court from a conviction of the lower offense places upon us the duty,
and therefore the necessity, of revising the whole case and of taking such action in the premises as law and justice
require. (Trono vs. United States, 199 U.S., 521; Kepner vs. United States, 195 U.S., 100.)

We are aware that the crime of homicide through an act of simple negligence which violates an ordinance of regulation
is not necessarily included in the crime of homicide through reckless negligence. The latter crime might possibly be
committed without the violation of an ordinance or regulation.

In that event it would not include the crime of homicide through an act of simple negligence which violates an ordinance
or regulation. The courts have not yet gone so far as to hold that, where there is an acquittal of the greater crime and a
conviction of a lesser crime not included in the greater and not charged in the information, an appeal from a conviction
of the lesser crime opens the way to a conviction of the greater crime in the appellate court if the evidence is there
found sufficient; nor has there been such holding in a case where two crimes, neither one included in the other, were
charged in the same information, and an acquittal was had as to the higher and a conviction as to the lower.

In the case at bar, however, we have both the higher and the lower degrees of the same crime charged in the
information. We have, also, a case in which the commission of the homicide was accompanied by a violation of the
ordinance, and in which, therefore, the crime of homicide through an act of negligence which violates an ordinance was
included in the crime of homicide by an act of reckless negligence.

This is a case where, as a matter of fact, the one was included in the other. Under the authorities, therefore, an appeal
from a conviction of the lower grade opens the whole case for reconsideration by this court upon all the evidence, and
requires us in the performance of our duty to pronounce such a judgment in the premises as in conscience we ought.

8. Taylor vs. Manila Electric Railroad 16 Phil 8 (1910)

FACTS:
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a
mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in
mechanics. The defendant is a foreign corporation engaged in the operation of a street railway and an electric light
system in the city of Manila.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the
footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who and
promised to make them a cylinder for a miniature engine.

Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and
perhaps by the unusual interest which both seem to have taken in machinery, spent some time in wandering about the
company's premises.

The visit was made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the
power house where they had asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open
space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces. Here
they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the
size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may
be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and
have in themselves a considerable explosive power.

After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could
find, hung them on stick, of which each took end, and carried them home.
After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the
home of the boy Manuel. The boys then made a series of experiments with the caps. Then they opened one of the caps
with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while
Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three.

Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run
away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by
several particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its
removal by the surgeons who were called in to care for his wounds.

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

Defendant company, apparently relying on the rule of law which places the burden of proof of such allegations upon the
plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof.

Ruling:

We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United
States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must
establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must
respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in the application
of these principles to the particular facts developed in the case under consideration.

It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where
they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear
that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon the
defendant's premises, and strolled around thereon without the express permission of the defendant, and had he not
picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter
deliberately cut open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon defendant
company's premises, and the intervention of his action between the negligent act of defendant in leaving the caps
exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any wise
to the accident, which should be deemed to be the direct result of defendant's negligence in leaving the caps exposed at
the place where they were found by the plaintiff, and this latter the proximate cause of the accident which occasioned
the injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort in
the United States in the cases known as the "Torpedo" and "Turntable" cases, and the cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant
of tender years, who from mere idle curiosity, or for the purposes of amusement, enters upon the railroad company's
premises, at a place where the railroad company knew, or had good reason to suppose, children would be likely to
come, and there found explosive signal torpedoes left unexposed by the railroad company's employees, one of which
when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous
machine, such as a turntable, left in such condition as to make it probable that children in playing with it would be
exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises liable.

As laid down in Railroad Co. vs. Stout  (17 Wall. (84 U. S.), 657), wherein the principal question was whether a railroad
company was liable for in injury received by an infant while upon its premises, from idle curiosity, or for purposes of
amusement, if such injury was, under circumstances, attributable to the negligence of the company), the principles on
which these cases turn are that "while a railroad company is not bound to the same degree of care in regard to mere
strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from
responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of
an infant of tender years is not to be judged by the same rule which governs that of adult. While it is the general rule in
regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another
he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and
caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout  was vigorously controverted and sharply criticized in several
state courts, and the supreme court of Michigan in the case of Ryan vs. Towar  (128 Mich., 463) formally repudiated and
disapproved the doctrine of the Turntable cases, especially that laid down in Railroad Company vs. Stout, in a very able
decision wherein it held, in the language of the syllabus: (1) That the owner of the land is not liable to trespassers
thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in
favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that
an invitation or license to cross the premises of another can not be predicated on the mere fact that no steps have been
taken to interfere with such practice; (4) that there is no difference between children and adults as to the circumstances
that will warrant the inference of an invitation or a license to enter upon another's premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout  were indulged in by the courts in Connecticut
and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in
Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine
laid down in England in the leading case of Lynch vs. Nurding  (1 Q. B., 29, 35, 36), lay down the rule in these cases in
accord with that announced in the Railroad Company vs. Stout  (supra), and the Supreme Court of the United States, in a
unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal  and reconsidered
the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the
adjudged cases, both English and American, formally declared that it adhered "to the principles announced in the case
of Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald  (supra) the facts were as follows: The plaintiff, a boy 12 years of
age, out of curiosity and for his own pleasure, entered upon and visited the defendant's premises, without defendant's
express permission or invitation, and while there, was by accident injured by falling into a burning slack pile of whose
existence he had no knowledge, but which had been left by defendant on its premises without any fence around it or
anything to give warning of its dangerous condition, although defendant knew or had reason the interest or curiosity of
passers-by. On these facts the court held that the plaintiff could not be regarded as a mere trespasser, for whose safety
and protection while on the premises in question, against the unseen danger referred to, the defendant was under no
obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to the facts in that case,
because what is said there is strikingly applicable in the case at bar, and would seem to dispose of defendant's
contention that, the plaintiff in this case being a trespasser, the defendant company owed him no duty, and in no case
could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout  (supra). Applied to the case now before us, they
require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made by it in
the vicinity of its depot building. It could have forbidden all persons from coming to its coal mine for purposes
merely of curiosity and pleasure.

But it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its
operation. It knew that the usual approach to the mine was by a narrow path skirting its slack pit, close to its
 depot building, at which the people of the village, old and young, would often assemble. It knew that children
were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the
slack pit.

The slightest regard for the safety of these children would have suggested that they were in danger from being
so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of
burning coals into which a child might accidentally fall and be burned to death. Under all the circumstances, the
railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine,
in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under
no obligation to make provisions.

In Townsend vs. Wathen  (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh, in his
own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in
his neighbors premises, would probably be attracted by their instinct into the traps, and in consequence of such
act his neighbor's dogs be so attracted and thereby injured, an action on the case would lie.

"What difference," said Lord Ellenborough, C.J., "is there in reason between drawing the animal into the trap by
means of his instinct which he can not resist, and putting him there by manual force?" What difference, in
reason we may observe in this case, is there between an express license to the children of this village to visit the
defendant's coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the
defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure?
Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1,
page 305, note, well says: "It would be a barbarous rule of law that would make the owner of land liable for
setting a trap thereon, baited with stinking meat, so that his neighbor's dog attracted by his natural instinct,
might run into it and be killed, and which would exempt him from liability for the consequence of leaving
exposed and unguarded on his land a dangerous machine, so that his neighbor's child attracted to it and
tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs. Harlow  (53 Mich.,
507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are
chargeable with a duty of care and caution toward them must calculate upon this, and take precautions
accordingly. If they leave exposed to the observation of children anything which would be tempting to them,
and which they in their immature judgment might naturally suppose they were at liberty to handle or play with,
they should expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit the premises of
another, says:

In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise
when it would not on behalf of others. Thus leaving a tempting thing for children to play with exposed, where
they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it;
and, perhaps, if one were to throw away upon his premises, near the common way, things tempting to children,
the same implication should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. vs.
Stout  (supra) and Union Pacific Railroad Co. vs. McDonald  (supra) is not less cogent and convincing in this jurisdiction
than in that wherein those cases originated. Children here are actuated by similar childish instincts and impulses. Drawn
by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found whenever the
public is permitted to congregate.

The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will
draw them to the neighbourhood as inevitably as does the magnet draw the iron which comes within the range of its
magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon
which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know
children are likely to roam about for pastime and in play, " must calculate upon this, and take precautions accordingly."

In such cases the owner of the premises cannot be heard to say that because the child has entered upon his premises
without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner's
failure to take reasonable precautions to prevent the child from entering his premises at a place where he knows or
ought to know that children are accustomed to roam about of to which their childish instincts and impulses are likely to
attract them is at least equivalent to an implied license to enter, and where the child does enter under such conditions
the owner's failure to take reasonable precautions to guard the child against injury from unknown or unseen dangers,
placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured, without
other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission.

To hold otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the
whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a right to do what
will with his own property or that children should be kept under the care of their parents or guardians, so as to prevent
their entering on the premises of others is of sufficient weight to put in doubt. In this jurisdiction as well as in the United
States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal
rights and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to
infants of very tender years it would be absurd and unreasonable in a community organized as is that in which we lived
to hold that parents or guardian are guilty of negligence or imprudence in every case wherein they permit growing boys
and girls to leave the parental roof unattended, even if in the event of accident to the child the negligence of the parent
could in any event be imputed to the child so as to deprive it a right to recover in such cases — a point which we neither
discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or
permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other
fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that under all the
circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the
proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the
negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the
detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries
inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the
intervention of his action between the negligent act of the defendant in leaving the caps exposed on its premises and
the explosion which resulted in his injury should not be held to have contributed in any wise to the accident; and it is
because we cannot agree with this proposition, although we accept the doctrine of the Turntable and Torpedo cases,
that we have thought proper to discuss and to consider that doctrine at length in this decision. As was said in case
of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover damages
for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the
rule in regard to an infant of tender years.

The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in
each case by the circumstances of the case."

As we think we have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no
fault which would relieve defendant of responsibility for injuries resulting from its negligence can be attributed to the
plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant's unenclosed premises without
express permission or invitation' but it is wholly different question whether such youth can be said to have been free
from fault when he wilfully and deliberately cut open the detonating cap, and placed a match to the contents, knowing,
as he undoubtedly did, that his action would result in an explosion.

On this point, which must be determined by "the particular circumstances of this case," the doctrine laid down in the
Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the "Torpedo" and
analogous cases which our attention has been directed, the record discloses that the plaintiffs, in whose favor judgments
have been affirmed, were of such tender years that they were held not to have the capacity to understand the nature or
character of the explosive instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and
physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a
mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was
exceptionally well qualified to take care of himself.
The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the
explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt
to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to
discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final
success of his endeavours brought about by the application of a match to the contents of the caps, show clearly that he
knew what he was about.

Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view
of the fact that the little girl, 9 years of age, who was within him at the time when he put the match to the contents of
the cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which might be expected
from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred;
but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly,
and knowingly produced the explosion.

It would be going far to say that "according to his maturity and capacity" he exercised such and "care and caution" as
might reasonably be required of him, or that defendant or anyone else should be held civilly responsible for injuries
incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate
the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise due care and
precaution in the commission of such acts; and indeed it would be impracticable and perhaps impossible so to do, for in
the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at which a minor can be said to have such ability will
necessarily depends of his own acts and their consequences; and at the age at which a minor can be said to have such
ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which may be done by
him.

But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an
examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable of exercising
certain rights and incurring certain responsibilities, though it cannot be said that these provisions of law are of much
practical assistance in cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to
become responsible for his own acts varies with the varying circumstances of each case.

Under the provisions of the Penal Code a minor over fifteen years of age is presumed to be capable of committing a
crime and is to held criminally responsible therefore, although the fact that he is less than eighteen years of age will be
taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may,
under certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may
petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And
males of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to
which he exposed himself when he put the match to the contents of the cap; that he was sui juris  in the sense that his
age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of
caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by
him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may
be true that these injuries would not have been incurred but for the negligence act of the defendant in leaving the caps
exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the accident which
inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17
rule 203.)

The  Patidas  contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can
not demand reparation therefor from another. (Law 25, tit. 5, Partida  3.)
 And they even said that when a man received an injury through his own acts the grievance should be against
himself and not against another. (Law 2, tit. 7, Partida  2.)

According to ancient sages, when a man received an injury through his own acts the grievance should be against
himself and not against another. (Law 2, tit. 7 Partida  2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law touching
contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the supreme
court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co.  (7 Phil. Rep., 359), clearly deny to
the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part, for the injuries
sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is directly in point.
In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation
when between such negligence and the injury there exists the relation of cause and effect; but if the injury
produced should not be the result of acts or omissions of a third party, the latter has no obligation to repair the
same, although such acts or omission were imprudent or unlawful, and much less when it is shown that the
immediate cause of the injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not
sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo
Civil  (1902 Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code, fault or negligence
gives rise to an obligation when between it and the damage there exists the relation of cause and effect; but if
the damage caused does not arise from the acts or omissions of a third person, there is no obligation to make
good upon the latter, even though such acts or omissions be imprudent or illegal, and much less so when it is
shown that the immediate cause of the damage has been the recklessness of the injured party himself.

And again —

In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is
apparent that it is duty of him who shall claim damages to establish their existence. The decisions of April 9,
1896, and March 18, July, and September 27, 1898, have especially supported the principle, the first setting
forth in detail the necessary points of the proof, which are two: An act or omission  on the part of the person
who is to be charged with the liability, and the production of the damage by said act or omission.

This includes, by inference, the establishment of a relation of cause or effect between the act or omission and
the damage; the latter must be the direct result of one of the first two. As the decision of March 22, 1881, said,
it is necessary that the damages result immediately and directly from an act performed culpably and wrongfully;
"necessarily presupposing a legal ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del Codigo
Civil,  vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this court in the
maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co.  (supra), wherein we held that while "There are many
cases (personal injury cases) was exonerated," on the ground that "the negligence of the plaintiff was the immediate
cause of the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year); none of the cases decided by the supreme court of Spain "define the effect to be given the
negligence of its causes, though not the principal one, and we are left to seek the theory of the civil law in the practice of
other countries;" and in such cases we declared that law in this jurisdiction to require the application of "the principle of
proportional damages," but expressly and definitely denied the right of recovery when the acts of the injured party were
the immediate causes of the accident.
The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate
causes of the accident. The test is simple. Distinction must be made between the accident and the injury,
between the event itself, without which there could have been no accident, and those acts of the victim not
entering into it, independent of it, but contributing to his own proper hurt.

For instance, the cause of the accident under review was the displacement of the crosspiece or the failure to
replace it. This produces the event giving occasion for damages—that is, the sinking of the track and the sliding
of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself.

Had the crosspiece been out of place wholly or partly through his act or omission of duty, that would have been
one of the determining causes of the event or accident, for which he would have been responsible. Where he
contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in
conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the
defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his
own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident which
resulted in plaintiff's injury, was in his own act in putting a match to the contents of the cap, and that having
"contributed to the principal occurrence, as one of its determining factors, he cannot recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's premises the
detonating caps, the property of defendant, and carrying the relation of cause and effect between the negligent act or
omission of the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the
explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very
tender years would have no effect in relieving defendant of responsibility, but whether in view of the well-known fact
admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity of
plaintiff should be deemed without fault in picking up the caps in question under all the circumstances of this case, we
neither discuss nor decide.

Is mere intoxication tantamount to negligence?

9. Wright vs. Manila Electric Co. 28 Phil122 (1914)

Facts:

The defendant is a corporation engaged in operating an electric street railway in the city of Manila and its suburbs,
including the municipality of Caloocan. The plaintiff's residence in Caloocan fronts on the street along which defendant's
tracks run, so that to enter his premises from the street plaintiff is obliged to cross defendant's tracks. On the night
mentioned plaintiff drove home in a calesa and in crossing the tracks to enter his premises the horse stumbled, leaped
forward, and fell, causing the vehicle with the rails, resulting in a sudden stop, threw plaintiff from the vehicle and
caused the injuries complained of.

It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only the rails were
above-ground, but that the ties upon which the rails rested projected from one-third to one-half of their depth out of
the ground, thus making the tops of the rails some 5 or 6 inches or more above the level of the street.

It is admitted that the defendant was negligent in maintaining its tracks as described, but it is contended that the
plaintiff was also negligent in that he was intoxicated to such an extent at the time of the accident that he was unable to
take care of himself properly and that such intoxication was the primary cause of the accident.

Ruling:

While both parties appealed from the decision, the defendant on the ground that it was not liable and the plaintiff on
the ground that the damages were insufficient according to the evidence, and while the plaintiff made a motion for a
new trial upon the statutory grounds and took proper exception to the denial thereof, thus conferring upon this court
jurisdiction to determine the question of fact, nevertheless, not all of the testimony taken on the trial, so far as can be
gathered from the record, has been brought to this court. There seems to have been two hearings, one on the 31st of
August and the other on the 28th of September.

The evidence taken on the first hearing is here; that taken on the second is not. Not all the evidence taken on the
hearings being before the court, we must refuse, under our rules, to consider even that evidence which is here; and, in
the decision of this case, we are, therefore, relegated to the facts stated in the opinion of the court and the pleadings
filed.

A careful reading of the decision of the trial court leads us to the conclusion that there is nothing in the opinion which
sustains the conclusion of the court that the plaintiff was negligent with reference to the accident which is the basis of
this action. Mere intoxication establishes a want of ordinary care. It is but a circumstance to be considered with the
other evidence tending to prove negligence.

It is the general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be
imputed to him, and no greater degree of care is required than by a sober one. If one's conduct is characterized by a
proper degree of care and prudence, it is immaterial whether he is drunk or sober.

If intoxication is not in itself negligence, what are the facts found by the trial court and stated in its opinion upon which
may be predicated the finding that the plaintiff did not use ordinary care and prudence and that the intoxication
contributed to the injury complained of? After showing clearly and forcibly the negligence of the defendant in leaving its
tracks in the condition in which they were on the night of the injury, the court has the following to say, and it is all that
can be found in its opinion, with reference to the negligence of the plaintiff: "With respect to the condition in which Mr.
Wright was on returning to his house on the night in question, the testimony of Doctor Kneedler, who was the physician
who attended him an hour after the accident, demonstrates that he was intoxicated. . . . .

If the defendant or its employees were negligent by reason of having left the rails and a part of the ties
uncovered in a street where there is a large amount of travel, the plaintiff was no less negligent, he not having
abstained from his custom of taking more wine than he could carry without disturbing his judgment and his self-
control, he knowing that he had to drive a horse and wagon and to cross railroad tracks which were to a certain
extent dangerous by reason of the rails being elevated above the level of the street.

If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance while in
a drunken condition, he would certainly have avoided the damages which he received, although the company,
on its part, was negligent in maintaining its tracks in a bad condition for travel.

Both parties, therefore, were negligent and both contributed to the damages resulting to the plaintiff, although
the plaintiff, in the judgment of the court, contributed in greater proportion to the damages that did the
defendant.

As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that the plaintiff was
negligent. The conclusion that if he had been sober he would not have been injured is not warranted by the facts as
found. It is impossible to say that a sober man would not have fallen from the vehicle under the conditions described. A
horse crossing the railroad tracks with not only the rails but a portion of the ties themselves aboveground, stumbling by
reason of the unsure footing and falling, the vehicle crashing against the rails with such force as to break a wheel, this
might be sufficient to throw a person from the vehicle no matter what his condition; and to conclude that, under such
circumstances, a sober man would not have fallen while a drunken man did, is to draw a conclusion which enters the
realm of speculation and guesswork.

10. U.S vs. Crame 30 Phil 2 (1915)

Facts:

Mariano Crame, being then and there the chauffeur of a motor vehicle, did then and there unlawfully, with reckless
imprudence and in violation of the regulations, conduct and drive the said motor vehicle along Calle Herran in said city,
without using reasonable care and diligence to prevent injury to persons and property and without paying any attention
to the pedestrians occupying and crossing said street, thus colliding with, running over, and by his neglect and
imprudence in the management and lack of control thereof, causing the said automobile guided and conducted by the
said accused as aforesaid, to knock down, drag, and run over the body of one George B. Coombs, a private in the United
States Army, who was then and there occupying and crossing the said Calle Herran, thereby causing injuries, wounds,
and bruises upon the person of the said George B. Coombs, which said injuries, wounds, and bruises have deranged the
mental faculties of the said George B. Coombs and have incapacitated him, the said George B. Coombs, from further
performance of his duties as a soldier of the said United States Army."cralaw virtua1aw library

It appears from the evidence that on the night of the 10th of February, 1914, between 11 and 12 o’clock, the accused,
Mariano Crame, a duly-licensed chauffeur, was driving an automobile, in which, at the time, were Thomas M. Bill, a
sailor belonging to the United States Navy, and Indalecio Rabonsa, an apprentice to the accused who, at the time of the
accident, was sitting at his side on the front seat. The automobile was passing from Santa Ana to Manila and, at the time
of the accident, was going in a northwesterly direction. At the same time there were two automobiles on the way from
Manila to Santa Ana, one belonging to Mr. Stuart, driven by himself, and the other a machine without passengers driven
by a chauffeur by the name of Miranda. The automobile driven by Stuart was a modern Cadillac with high-powered
electric lights. The accused states that this fact, added to the other fact that he was near the Damas Bridge at the time,
induced him to reduce the speed of the automobile at that point so that he was, at the time of the accident, going only
about 10 miles an hour. He asserts that he suddenly saw the form of a man in front of his automobile and that, on seeing
him, he altered the course of the machine as much as possible in order to avoid a collision; but that he was unable to do
so, the right side of the machine hitting the man and knocking him to the ground. He asserts that, at the time it struck
the man, the machine was almost at a standstill, it coming to a complete stop within about 6 feet of where the injured
man lay.

Crame, Rabonsa, and Bill placed the injured man in the automobile and carried him to the hospital. Afterwards they
went to the police station at Paco and gave an account of the accident. Immediately thereafter Crame also went to the
office of the superintendent of automobiles of the Bureau of Public Works and reported the accident.

Relative to the injuries resulting to Coombs from the accident, it appears that he received a heavy blow in the lower part
of the back of the head which caused ecchymosis and coagulation of blood. As a result of the blow he was rendered
unconscious and has since remained in a state of great mental debility, with severe pains in the head, almost complete
loss of memory, being unable to remember anything that occurred during the accident and, at times, forgetting the
names and countenances of his most intimate friends. He cannot be left alone and requires continual attendance. He is
described by the physician who examined and treated him as an incurable and hopeless imbecile.

The learned trial court convicted the accused of the crime of producing serious physical injuries by imprudencia
temeraria

Ruling:

This argument is, in our judgment, not a strong one. The fact that the accused did not see the soldier until the machine
was very close to him is strong evidence of inattention to duty. The street at the place where the accident occurred is
wide and unobstructed. There is no building on either side of the street. There is no place from which a person desiring
to cross the street can dart out so suddenly and unexpectedly as to give a chauffeur no opportunity to protect him.

The street at the point where the accident occurred was well lighted by electric lights placed on both sides of the street.
Besides, it is in close proximity to McKinley Junction and there are a number of electric lights in and about the waiting
station located at that point. Under such circumstances there is no reason why the accused did not see the soldier long
before he had reached the position in the street where he was struck down.

It is claimed by the accused himself that the soldier was near the center of the street when the collision occurred. In that
event he must have walked in plain sight of the oncoming machine for many feet before he arrived at the place where
he was struck. He could not have risen out of the ground nor could he have darted suddenly into the street from a side
street or door. He was walking in an open, level, and thoroughly lighted street for many feet before he was hit by the
automobile; and the fact that the accused, under such circumstances, did not see him is strong evidence that he was
negligent.

The accused intimates in his testimony that a carromata was approaching him just before the accident occurred and that
it obscured his vision to such an extent that he did not see the soldier until the very moment of meeting the carromata.
This story is not corroborated by any other witness in the case. No one else speaks of the presence there of a carromata
and no one offers this as a reason why the soldier was not seen in time to avoid the accident.
Moreover, if the soldier were crossing the street the carromata would have obscured him for a moment only and there
would have been abundant time to observe him before he reached the carromata and after he had passed it. Besides, it
is the duty of automobile drivers in meeting a moving vehicle on the public streets and highways to use due care and
diligence to see to it that persons who may be crossing behind the moving vehicle are not run down by their
automobiles. There is nothing in this story of the accused which, if true, relieves him from the charge of negligence
under the other facts and circumstances disclosed by the evidence. It is to be noted, also, that counsel for the accused
lays no stress on this portion of his story and does not make it the basis of an argument in his behalf.

As we have said, the testimony and the exhibits show that the accident occurred at or near the McKinley Junction,
where there is a waiting station, a kiosko, and a hydrant, where many persons habitually wait to transfer and where, as a
matter of fact, even up to midnight, many persons stroll about waiting for cars. The defendant was aware of these facts.

Moreover, he testified himself that the street at that place was not level, that the rails of the street-car track made it
difficult for automobiles to cross or pass over them and that keeping to the extreme left-hand side of the street would
endanger the safety of the automobile and the passengers. All of these are facts which require care and diligence on the
part of an automobile driver; and such a place should be approached guardedly, with the machine under control and
with ability to stop with reasonable quickness.

It appears clearly established by the evidence that the accused was driving on the right-hand side of the street when the
accident happened. According to the law of the road and the custom of the country he should have been on the left-
hand side of the street. According to the evidence there was abundant room for him to drive upon what may properly
be called the left-hand side of the street and still be free from danger or risk.

Instead of that he chose to take what appears from the evidence to have been almost the extreme right-hand side of the
street. Thomas M. Bill, who was a passenger in the automobile which ran down the soldier, testified that the automobile
at the time of the accident was traveling on the right-hand side of the street. A. R. Stuart, who was driving an
automobile approaching the place of the accident from the opposite direction, testified that the victim was struck at the
point marked "A" on the plan introduced in evidence and that the automobile was located at the point marked "B," a
point indisputably on the right-hand side of the street; that the automobile, when it stopped after the collision, was not
standing parallel with the street but at an angle with the center line of the street, having turned toward the left-hand
side of the street after it had run down the soldier.

He also testified that, if he had continued upon what was to him the left-hand side of the street, he would have run over
the body of the soldier. The testimony showing that the accused was driving on the right-hand side of the street is
corroborated by the fact that the witness Rabonsa, who testified on the trial that the accused was driving on the left-
hand side of the street, first declared, in his statement to the prosecuting attorney, that, at the time of the accident, the
automobile was being driven on the right-hand side of the street.

While it is true that the law does not draw an inference of negligence from the mere showing that there was a collision
between a man and an automobile on a public street but that negligence must be proved, nevertheless, we believe it to
be the rule that testimony that plaintiff, while driving on the right-hand side of a wide road, was overtaken by an
automobile which struck the hind wheel of his wagon, establishes a case of negligence. (Salminen v. Ross, 185 Fed., 997.)
And a bicyclist has the burden of disproving his negligence when he rides up behind an- other who is walking where he
has a right to walk and, without giving any warning, strikes him with his vehicle. (Myers v. Hinds, 110 Mich., 300.) And
we have held in the case of Chapman v. Underwood (27 Phil. Rep., 374), that where, in an action to recover damages for
having been run down by defendant’s automobile, it appeared that the automobile, at the time the injury was produced,
was being driven on the wrong side of the street, the burden of proof was on defendant to establish that the accident
occurred through other causes than his negligence.

There is no evidence in the case which shows negligence on the part of the injured soldier. The mere fact that he was
run down by an automobile does not signify that he was negligent. At the time he was struck he was, speaking from the
direction in which the accused was driving the automobile at the time, on the right-hand side of the street where he had
a right to be and where the law fully protected him from vehicles traveling in the direction in which the accused was
driving at the time of the injury.

The rule which requires travelers to look out for trains at railroad crossings by stopping, looking and listening before
they pass over the tracks does not fix the measure of care which a pedestrian attempting to cross a street must use in
looking out for automobiles. Negligence and contributory negligence are matters to be proved, and the burden is on the
one alleging injury from negligence to establish it and upon the other alleging immunity because of contributory
negligence to establish it, unless it is shown by the plaintiff’s testimony.

The injured soldier cannot be held to have been negligent except upon evidence establishing that fact. The beggar on his
crutches has the same right to the use of the streets of the city as has the man in his automobile. Each is bound to the
exercise of ordinary care for his own safety, and the prevention of injury to others, in the use thereof. (Millsaps v.
Brogdon, 32 L. R. A. (N. S.) , 1177.) This is especially true when we take into consideration the assertion of the accused
that, by reason of the position of the street-car tracks, he was unable to take the left-hand side of the street, which is
the side which the law requires him to take, but that it was necessary for him to pass in the middle of the street or a
little to the right of the middle in order to make a safe passage for the automobile and its passengers.

We have held in the case of Chapman v. Underwood (27 Phil. Rep., 374), a case in which the defendant’s chauffeur was
driving on the wrong side of the street at the time the accident, which was the basis of the action, occurred, that
"defendant’s driver was guilty of negligence in running upon and over the plaintiff. He was passing an oncoming car
upon the wrong side. The plaintiff, in coming out to board the car, was not obliged, for his own protection, to observe
whether a car was coming upon him from his left hand. He had only to guard against those coming from the right.

He knew that, according to the law of the road, no automobile or other vehicle coming from his left hand should pass
upon his side of the car. He needed only to watch for cars coming from his right, as they were the only ones under the
law permitted to pass upon that side of the street car."cralaw virtua1aw library

We regard it as clear from the record that the accused was driving much faster than he claims he was or else he was
negligent in not watching the street for foot passengers, or in the handling of his automobile. It is a matter of common
knowledge that an automobile being driven at 10 miles an hour can be stopped, if necessity requires it, within 10 or 15
feet at the most. That rate of speed is extremely low for an automobile and, with such a speed, it can be stopped almost
instantly.

If, therefore, the accused was going at the rate of 10 miles an hour only and saw the soldier 20 feet ahead of him, he
could, without difficulty, have stopped the automobile and avoided the accident. As a necessary consequence, the
accused was either driving at a rate of speed much higher than that stated or else he was negligent in not stopping his
car. Furthermore, if he did not see the soldier until too late to stop, the burden is on him to show why he did, not.

There is something wrong when a chauffeur runs over a man who is in plain view of the automobile for a long distance
before the point of the accident is reached. No negligence on the part of the injured person has been shown. Whichever
way the case is looked at, whether from the viewpoint of the failure to see the soldier in time to avoid the accident or
failure to stop or give warning by horn or whistle, it is clear that the learned trial court was right when it held that the
accused was guilty of negligence.

There is no competent evidence to show that the soldier was drunk at the time of the accident; but, even if he was
drunk, it is of little consequence in the decision of this case, it not having been shown that such drunkenness contributed
to the accident. Whatever his condition he could easily have been seen by the automobile driver if he had been vigilant,
as he should have been, in passing over the streets of a city and especially in passing a place where many people
generally congregate and where the street is much used by people on foot.

It is not shown that the soldier’s drunkenness, if he was in that state, in any degree contributed to the accident or that
the accident would have been avoided if he had been sober. We have held in the case of Wright v. Manila Electric
Railroad and Light Co. (28 Phil. Rep., 122):jgc:chanrobles.com.ph

"Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. It is but a
circumstance to be considered with the other evidence tending to prove negligence. It is the general rule that it is
immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no
greater degree of care is required to be exercised by an intoxicated man for his own protection than by a sober one. If
one’s conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober. 

11. Valenzuela vs. Court of Appeals

Facts:
Plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her restaurant at
Marcos highway to her home at Palanza Street, Araneta Avenue. She was travelling along Aurora Blvd. with a
companion, Cecilia Ramon, heading towards the direction of Manila. Before reaching A. Lake Street, she noticed
something wrong with her tires; she stopped at a lighted place where there were people, to verify whether she had a
flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and that she
cannot reach her home in that car's condition, she parked along the sidewalk, about 1-1/2 feet away, put on her
emergency lights, alighted from the car, and went to the rear to open the trunk.

She was standing at the left side of the rear of her car pointing to the tools to a man who will help her fix the tire when
she was suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the name of
defendant Alexander Commercial, Inc. Because of the impact plaintiff was thrown against the windshield of the car of
the defendant, which was destroyed, and then fell to the ground. She was pulled out from under defendant's car.
Plaintiff's left leg was severed up to the middle of her thigh, with only some skin and sucle connected to the rest of the
body. She was brought to the UERM Medical Memorial Center where she was found to have a "traumatic amputation,
leg, left up to distal thigh (above knee)". She was confined in the hospital for twenty (20) days and was eventually fitted
with an artificial leg. The expenses for the hospital confinement (P120,000.00) and the cost of the artificial leg
(P27,000.00) were paid by defendants from the car insurance.

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph; considering that it was
raining, visibility was affected and the road was wet. Traffic was light. He testified that he was driving along the inner
portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted, in
the vicinity of A. Lake Street, San Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full
bright lights".

Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle, and bumped
plaintiff's car, which he did not see because it was midnight blue in color, with no parking lights or early warning device,
and the area was poorly lighted. He alleged in his defense that the left rear portion of plaintiff's car was protruding as it
was then "at a standstill diagonally" on the outer portion of the right lane towards Araneta Avenue (par. 18, Answer). He
confirmed the testimony of plaintiff's witness that after being bumped the car of the plaintiff swerved to the right and
hit another car parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless or
negligent, as she was not a licensed driver.

ISSUES:

1. WON Li was negligent in driving his company-issued Mitsubishi Lancer (YES)

2. WON Valenzuela is guilty of contributory negligence (NO)

RULING:

1.

In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness, Rogelio
Rodriguez, the owner-operator of an establishment located just across the scene of the accident. On trial, he testified
that he observed a car being driven at a "very fast" speed, racing towards the general direction of Araneta
Avenue.6 Rodriguez further added that he was standing in front of his establishment, just ten to twenty feet away from
the scene of the accident, when he saw the car hit Valenzuela, hurtling her against the windshield of the defendant's
Mitsubishi Lancer, from where she eventually fell under the defendant's car. Spontaneously reacting to the incident, he
crossed the street, noting that a man reeking with the smell of liquor had alighted from the offending vehicle in order to
survey the incident.7 Equally important, Rodriguez declared that he observed Valenzuela's car parked parallel and very
near the sidewalk,8 contrary to Li's allegation that Valenzuela's car was close to the center of the right lane. We agree
that as between Li's "self-serving" asseverations and the observations of a witness who did not even know the accident
victim personally and who immediately gave a statement of the incident similar to his testimony to the investigator
immediately after the incident, the latter's testimony deserves greater weight. As the court emphasized:
 The issue is one of credibility and from Our own examination of the transcript, We are not prepared to set aside
the trial court's reliance on the testimony of Rodriguez negating defendant's assertion that he was driving at a
safe speed. While Rodriguez drives only a motorcycle, his perception of speed is not necessarily impaired. He
was subjected to cross-examination and no attempt was made to question .his competence or the accuracy of
his statement that defendant was driving "very fast". This was the same statement he gave to the police
investigator after the incident, as told to a newspaper report (Exh. "P"). We see no compelling basis for
disregarding his testimony.

The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the testimony.
Rodriguez testified that the scene of the accident was across the street where his beerhouse is located about
ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state that the accident transpired
immediately in front of his establishment. The ownership of the Lambingan se Kambingan is not material; the
business is registered in the name of his mother, but he explained that he owns the establishment (p. 5, tsn,
June 20, 1991). Moreover, the testimony that the streetlights on his side of Aurora Boulevard were on the night
the accident transpired (p. 8) is not necessarily contradictory to the testimony of Pfc. Ramos that there was a
streetlight at the corner of Aurora Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy rain and the
rain has stopped and he was outside his establishment at the time the accident transpired (pp. 64-65, tsn, June
17, 1991). This was consistent with plaintiff's testimony that it was no longer raining when she left Bistro La
Conga (pp. 10-11, tsn, April 29, 1991). It was defendant Li who stated that it was raining all the way in an
attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of Pfc.
Ramos that it was raining, he arrived at the scene only in response to a telephone call after the accident had
transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial inconsistencies in Rodriguez's testimony that
would impair the essential integrity of his testimony or reflect on his honesty. We are compelled to affirm the
trial court's acceptance of the testimony of said eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with so many
inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to provide a version,
obviously self-serving, which would exculpate him from any and all liability in the incident. Against Valenzuela's
corroborated claims, his allegations were neither backed up by other witnesses nor by the circumstances proven in the
course of trial. He claimed that he was driving merely at a speed of 55 kph. when "out of nowhere he saw a dark maroon
lancer right in front of him, which was (the) plaintiff's car". He alleged that upon seeing this sudden "apparition" he put
on his brakes to no avail as the road was slippery.9

One will have to suspend disbelief in order to give credence to Li's disingenuous and patently self-serving asseverations.
The average motorist alert to road conditions  will have no difficulty applying the brakes to a car traveling at the speed
claimed by Li. Given a light rainfall, the visibility of the street, and the road conditions on a principal metropolitan
thoroughfare like Aurora Boulevard, Li would have had ample time to react to the changing conditions of the road if he
were alert - as every driver should be - to those conditions. Driving exacts a more than usual toll on the senses.
Physiological "fight or flight" 10 mechanisms are at work, provided such mechanisms were not dulled by drugs, alcohol,
exhaustion, drowsiness, etc.11 Li's failure to react in a manner which would have avoided the accident could therefore
have been only due to either or both of the two factors: 1) that he was driving at a "very fast" speed as testified by
Rodriguez; and 2) that he was under the influence of alcohol.12 Either factor working independently would have
diminished his responsiveness to road conditions, since normally he would have slowed down prior to reaching
Valenzuela's car, rather than be in a situation forcing him to suddenly apply his brakes.

2.

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has
suffered, which falls below the standard to which he is required to conform for his own protection.14 Based on the
foregoing definition, the standard or act to which, according to petitioner Li, Valenzuela ought to have conformed for
her own protection was not to park at all at any point of Aurora Boulevard, a no parking zone. We cannot agree.

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to be
held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes stock of
impulses of humanity when placed in threatening or dangerous situations and does not require the same standard of
thoughtful and reflective care from persons confronted by unusual and oftentimes threatening conditions.15
Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an individual who suddenly finds
himself in a situation of danger and is required to act without much time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon
reflection may appear to be a better solution, unless the emergency was brought by his own negligence.17

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid hitting
two children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate Court,18 that the driver
therein, Jose Koh, "adopted the best means possible in the given situation" to avoid hitting the children. Using the
"emergency rule" the Court concluded that Koh, in spite of the fact that he was in the wrong lane when the collision
with an oncoming truck occurred, was not guilty of negligence.19

While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a
threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by
the suddenness of the event which absolutely negates thoroughly care, but by the over-all nature of the circumstances.

A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point
which is both convenient for her to do so and which is not a hazard to other motorists. She is not expected to run the
entire boulevard in search for a parking zone or turn on a dark street or alley where she would likely find no one to help
her.

It would be hazardous for her not to stop and assess the emergency (simply because the entire length of Aurora
Boulevard is a no-parking zone) because the hobbling vehicle would be both a threat to her safety and to other
motorists. In the instant case, Valenzuela, upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed
that she had a flat tire.

To avoid putting herself and other motorists in danger, she did what was best under the situation. As narrated by
respondent court: "She stopped at a lighted place where there were people, to verify whether she had a flat tire and to
solicit help if needed. Having been told by the people present that her rear right tire was flat and that she cannot reach
her home she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car."20 In fact, respondent
court noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed that Valenzuela's car was parked
very close to the sidewalk.21 

The sketch which he prepared after the incident showed Valenzuela's car partly straddling the sidewalk, clear and at a
convenient distance from motorists passing the right lane of Aurora Boulevard. This fact was itself corroborated by the
testimony of witness Rodriguez.22

Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the emergency and
could not be considered to have contributed to the unfortunate circumstances which eventually led to the amputation
of one of her lower extremities. The emergency which led her to park her car on a sidewalk in Aurora Boulevard was not
of her own making, and it was evident that she had taken all reasonable precautions.

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the accident.
"Negligence, as it is commonly understood is conduct which creates an undue risk of harm to others."23 It is the failure to
observe that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury.24 We stressed, in Corliss vs. Manila Railroad Company,25 that negligence is the want of care
required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was grossly
negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M. after a
heavy downpour had settled into a drizzle rendering the street slippery. There is ample testimonial evidence on record
to show that he was under the influence of liquor. Under these conditions, his chances of effectively dealing with
changing conditions on the road were significantly lessened. As Presser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance
of obstacles and persons on the highway, and of other vehicles at intersections, such as one who sees a child on
the curb may be required to anticipate its sudden dash into the street, and his failure to act properly when they
appear may be found to amount to negligence.26

Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was clearly of his
own making.
We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In denying liability on the part
of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's testimony, that the visit was in connection with official matters.
His functions as assistant manager sometimes required him to perform work outside the office as he has to visit
buyers and company clients, but he admitted that on the night of the accident he came from BF Homes
Paranaque he did not have "business from the company" (pp. 25-26, ten, Sept. 23, 1991). The use of the
company car was partly required by the nature of his work, but the privilege of using it for non-official business
is a "benefit", apparently referring to the fringe benefits attaching to his position.

Under the civil law, an employer is liable for the negligence of his employees in the discharge of their respective
duties, the basis of which liability is not respondeat superior, but the relationship of  pater familias, which theory
bases the liability of the master ultimately on his own negligence and not on that of his servant (Cuison v.
Norton and Harrison Co., 55 Phil. 18).

Before an employer may be held liable for the negligence of his employee, the act or omission which caused
damage must have occurred while an employee was in the actual performance of his assigned tasks or duties
(Francis High School vs. Court of Appeals, 194 SCRA 341).

In defining an employer's liability for the acts done within the scope of the employee's assigned tasks, the
Supreme Court has held that this includes any act done by an employee, in furtherance of the interests of the
employer or for the account of the employer at the time of the infliction of the injury or damage (Filamer
Christian Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is expected to impose upon its
employees the necessary discipline called for in the performance of any act "indispensable to the business and
beneficial to their employer" (at p. 645).

In light of the foregoing, We are unable to sustain the trial court's finding that since defendant Li was authorized
by the company to use the company car "either officially or socially or even bring it home", he can be considered
as using the company car in the service of his employer or on the occasion of his functions.

Driving the company car was not among his functions as assistant manager; using it for non-official purposes
would appear to be a fringe benefit, one of the perks attached to his position. But to impose liability upon the
employer under Article 2180 of the Civil Code, earlier quoted, there must be a showing that the damage was
caused by their employees in the service of the employer or on the occasion of their functions. There is no
evidence that Richard Li was at the time of the accident performing any act in furtherance of the company's
business or its interests, or at least for its benefit. The imposition of solidary liability against defendant
Alexander Commercial Corporation must therefore fail.27

We agree with the respondent court that the relationship in question is not based on the principle of respondeat
superior, which holds the master liable for acts of the servant, but that of  pater familias, in which the liability ultimately
falls upon the employer, for his failure to exercise the diligence of a good father of the family in the selection and
supervision of his employees. It is up to this point, however, that our agreement with the respondent court ends.
Utilizing the bonus pater familias standard expressed in Article 2180 of the Civil Code, 28 we are of the opinion that Li's
employer, Alexander Commercial, Inc. is jointly and solidarily liable for the damage caused by the accident of June 24,
1990.

First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent court has placed undue reliance,
dealt with the subject of a school and its teacher's supervision of students during an extracurricular activity. These cases
now fall under the provision on special parental authority found in Art. 218 of the Family Code which generally
encompasses all authorized school activities, whether inside or outside school premises.

Second, the employer's primary liability under the concept of  pater familias embodied by Art 2180 (in relation to Art.
2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showing that he exercised
the diligence of a good father of the family in the selection and supervision of its employees. Once evidence is
introduced showing that the employer exercised the required amount of care in selecting its employees, half of the
employer's burden is overcome. The question of diligent supervision, however, depends on the circumstances of
employment.

Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during the
performance of the latter's assigned tasks would be enough to relieve him of the liability imposed by Article 2180 in
relation to Article 2176 of the Civil Code. The employer is not expected to exercise supervision over either the
employee's private activities or during the performance of tasks either unsanctioned by the former or unrelated to the
employee's tasks. The case at bench presents a situation of a different character, involving a practice utilized by large
companies with either their employees of managerial rank or their representatives.

It is customary for large companies to provide certain classes of their employees with courtesy vehicles. These company
cars are either wholly owned and maintained by the company itself or are subject to various plans through which
employees eventually acquire their vehicles after a given period of service, or after paying a token amount. Many
companies provide liberal "car plans" to enable their managerial or other employees of rank to purchase cars, which,
given the cost of vehicles these days, they would not otherwise be able to purchase on their own.

Under the first example, the company actually owns and maintains the car up to the point of turnover of ownership to
the employee; in the second example, the car is really owned and maintained by the employee himself. In furnishing
vehicles to such employees, are companies totally absolved of responsibility when an accident involving a company-
issued car occurs during private use after normal office hours?

Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests of road
worthiness from their agents prior to turning over the car (subject of company maintenance) to their representatives. In
other words, like a good father of a family, they entrust the company vehicle only after they are satisfied that the
employee to whom the car has been given full use of the said company car for company or private purposes will not be a
threat or menace to himself, the company or to others. When a company gives full use and enjoyment of a company car
to its employee, it in effect guarantees that it is, like every good father, satisfied that its employee will use the privilege
reasonably and responsively.

In the ordinary course of business, not all company employees are given the privilege of using a company-issued car. For
large companies other than those cited in the example of the preceding paragraph, the privilege serves important
business purposes either related to the image of success an entity intends to present to its clients and to the public in
general, or - for practical and utilitarian reasons - to enable its managerial and other employees of rank or its sales
agents to reach clients conveniently.

In most cases, providing a company car serves both purposes. Since important business transactions and decisions may
occur at all hours in all sorts of situations and under all kinds of guises, the provision for the unlimited use of a company
car therefore principally  serves the business and goodwill of a company and only incidentally the private purposes of the
individual who actually uses the car, the managerial employee or company sales agent.

As such, in providing for a company car for business use and/or for the purpose of furthering the company's image, a
company owes a responsibility to the public to see to it that the managerial or other employees to whom it entrusts
virtually unlimited use of a company issued car are able to use the company issue capably and responsibly.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the trial court, he
admitted that his functions as Assistant Manager did not require him to scrupulously keep normal office hours as he was
required quite often to perform work outside the office, visiting prospective buyers and contacting and meeting with
company clients. 30 

These meetings, clearly, were not strictly confined to routine hours because, as a managerial employee tasked with the
job of representing his company with its clients, meetings with clients were both social as well as work-related functions.
The service car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the corporation - to
put up the front of a highly successful entity, increasing the latter's goodwill before its clientele. It also facilitated
meeting between Li and its clients by providing the former with a convenient mode of travel.

Moreover, Li's claim that he happened to be on the road on the night of the accident because he was coming from a
social visit with an officemate in Paranaque was a bare allegation which was never corroborated in the court below. It
was obviously self-serving. Assuming he really came from his officemate's place, the same could give rise to speculation
that he and his officemate had just been from a work-related function, or they were together to discuss sales and other
work related strategies.

In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and diligence of
a good father of the family in entrusting its company car to Li. No allegations were made as to whether or not the
company took the steps necessary to determine or ascertain the driving proficiency and history of Li, to whom it gave
full and unlimited use of a company car.31 Not having been able to overcome the burden of demonstrating that it should
be absolved of liability for entrusting its company car to Li, said company, based on the principle of bonus pater familias,
ought to be jointly and severally liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the
accident.

Contributory Negligence

12. Ma-ao Sugar Central CO. Inc. vs. CA

Facts:

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

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

Ruling:

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

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

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

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

It is argued that the locomotive that was derailed was on its way back and that it had passed the same rails earlier
without accident. The suggestion is that the rails were properly aligned then, but that does not necessarily mean they
were still aligned afterwards. It is possible that the fish plates were loosened and detached during its first trip and the
rails were as a result already mis-aligned during the return trip. But the Court feels that even this was unlikely, for, as
earlier noted, the fish plates were supposed to have been bolted to the rails and could be removed only with special
tools. The fact that the fish plates were not found later at the scene of the mishap may show they were never there at
all to begin with or had been removed long before.
At any rate, the absence of the fish plates – whatever the cause or reason – is by itself alone proof of the negligence of
the petitioner. Res ipsa loquitur. The doctrine was described recently in Layugan v. Intermediate Appellate  Court, 4 thus:

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

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

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

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

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

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

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

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

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

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

As observed by Justice J.B.L. Reyes in the case of Valencia v. Manila Yacht Club, 9 which is still controlling:
 . . . By their nature and purpose, the sickness or disability benefits to which a member of the System
may be entitled under the Social Security law (Rep. Act No. 1161, as amended by Rep. Acts Nos. 1792
and 2658) are not the same as the compensation that may be claimed against the employer under the
Workmen's Compensation Act or the Civil Code, so that payment to the member employee of social
security benefits would not wipe out or extinguish the employer's liability for the injury or illness
contracted by his employee in the course of or during the employment. It must be realized that, under
the Workmen's Compensation Act (or the Civil Code, in a proper case), the employer is required to
compensate the employee for the sickness or injury arising in the course of the employment because
the industry is supposed to be responsible therefore; whereas, under the Social Security Act, payment is
being made because the hazard specifically covered by the membership, and for which the employee
had put up his own money, had taken place. As this Court had said:

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

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

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

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

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

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

13. MMTC vs CA, August 1, 2002

Facts:

 in the afternoon of December 24, 1986, she, her daughter Maria Zenia and the victim, Florentina Sabalburo, were on
their way to Baclaran to buy foodstuffs for their Noche Buena. For some time, they stood on the island at the
intersection of St. Andrews Street2 and Domestic Road, [Pasay City] waiting for the traffic light to change so they could
cross to the other side of St. Andrews Street where they intended to take a ride for Baclaran. When the traffic light
turned red and the vehicles along St. Andrews Street had stopped, the three of them stepped off the island. Just as they
started to cross the street, she (Baylon) saw an MMTC bus coming from their right (Tramo) which was moving at a fast
speed. The next moment, the left front portion of the bus hit the victim on the right side of her head. The impact was of
such force that the victim’s right ear was slashed off and she thereupon fell on the cement and became unconscious.
The victim was brought by the bus driver, Apolinario Ajoc and the bus conductress to the San Juan de Dios Hospital
where she was given medical attention. Florentina Sabalburo never regained consciousness and it was on January 3,
1987 that she succumbed to her injuries.3

On February 16, 1987, private respondents filed a complaint4 for damages against MMTC and its driver, Ajoc, with the
Regional Trial Court of Makati. Docketed as Civil Case No. 16062, the complaint essentially alleged that Ajoc drove the
MMTC bus in a wanton and reckless manner, in gross violation of traffic rules and regulations, without due regard for
the safety of others, thus causing the untimely death of the victim.

Petitioners denied the material allegations of the complaint, disclaimed any liability for the incident, and insisted that
the accident was solely due to the victim’s own negligence. The appellate court summed up their version of the incident
as follows:

That at the time material to this case, bus no. 033, with defendant Ajoc driving, then bound towards the
direction of Baclaran proper, was slowly accelerating speed on the outer right lane of the road, in response to
the go signal of the traffic light situated in the intersection of Domestic Road [and Andrew Avenue], while the
vehicles on the inner right lane which were going to turn left towards Domestic Road were at a stop position, the
deceased FLORENTINA G. SABALBURO, whose stationary position was then covered from Ajoc’s peripheral vision
by a big truck then bound to MIA Road [that] was at a stop position, suddenly, without regard to her own safety
and in total defiance of traffic signs designed to protect pedestrian[s], suddenly darted across the road; Ajoc,
thus caught by surprise, tried to prevent impact by releasing his accelerator pedal and applying his brakes but
the time lag between the deceased’s negligent act and Ajoc’s prudent and diligent reaction to the former made
the impact a certainty.

Ruling:

In asking us to apply Article 2179 of the Civil Code, we note that petitioners are asking us to make a finding that the
victim’s own negligence was the direct and proximate cause of her death. This we cannot do. The issue of whether a
person is negligent or not is a question of fact.14 The Supreme Court is not a trier of facts,15 although it has the power and
authority to review and reverse the factual findings of lower courts where these do not conform to the evidence16 or
where the courts below came up with contradictory factual findings.17

We have thoroughly perused the records of this case, and nowhere do we find evidence to support petitioners’ claim
that the victim was so engrossed in thinking about Noche Buena while crossing a busy street. Petitioners’ stance
regarding the victim’s alleged negligence is non sequitur. It simply does not follow that one who is run over by a vehicle
on Christmas Eve (or any other holiday for that matter) is negligent because his thoughts were on the holiday festivities.

Instead, the records support private respondents’ claim that the MMTC bus was being driven carelessly. As found by the
trial court and affirmed by the Court of Appeals, the victim and her companions were standing on the island of Andrew
Avenue, waiting for the traffic light to change so they could cross. Upon seeing the red light, the victim and her
companions started to cross. It was then when petitioner Ajoc, who was trying to beat the red light, hit the victim. As the
court a quo noted, Ajoc’s claim that "he failed to see the victim and her companions proves his recklessness and lack of
caution in driving his vehicle."18 Findings of fact of the trial court, especially when affirmed by the Court of Appeals, are
binding and conclusive on the Supreme Court.19 More so, as in this case, where petitioners have not adequately shown
that the courts below overlooked or disregarded certain facts or circumstances of such import as would have altered the
outcome of the case. Contrary to petitioners’ insistence, the applicable law in this case is Article 2176 of the Civil Code
and not Article 2179.

Petitioner MMTC next contends that the Court of Appeals erred in finding it solidarily liable for damages with its
driver/employee, Ajoc, pursuant to the relevant paragraphs of Article 218020 of the Civil Code. It argues that the act of
Ajoc in bringing the victim to a hospital reflects MMTC’s diligence in the selection and supervision of its drivers,
particularly with regard to safety measures. Hence, having exercised the diligence of a good father of a family in the
selection and supervision of its employees to prevent damage, MMTC should not be held vicariously liable.

It should be stressed, however, that whenever an employee’s negligence causes damage or injury to another, there
instantly arises a presumption juris tantum that there was negligence on the part of the employer, either in the selection
of the employee (culpa in eligiendo) or the supervision over him after the selection (culpa in vigilando).21 Hence, to
escape solidary liability for a quasi-delict committed by his employee, an employer must rebut the presumption by
presenting convincing proof that in the selection and supervision of his employee, he has exercised the care and
diligence of a good father of a family.22 In the present case, petitioner MMTC failed to rebut the presumption of
negligence on its part.

The claim that Ajoc’s act of bringing the victim to the nearest medical facility shows adequate supervision by MMTC over
its employees deserves but scant consideration. For one, the act was after the fact of negligence on Ajoc’s part. For
another, the evidence on record shows that Ajoc’s act was neither voluntary nor spontaneous; he had to be prevailed
upon by the victim’s companions to render assistance to his victim.23 Moreover, the evidence to show that MMTC had
exercised due diligence in the selection and supervision of its employees consisted merely of the pertinent guidelines for
the screening and selection of its drivers, as well as periodic seminars on road safety.

As found by the trial court, and affirmed by the appellate court, petitioner MMTC failed to show that its driver, Ajoc, had
actually undergone such screening or had attended said seminars. As previously held, "[t]he mere formulation of various
company policies on safety without showing that they were being complied with is not sufficient to exempt (an
employer) from liability arising from negligence of its employees. It is incumbent upon petitioner to show that in
recruiting and employing the erring driver the recruitment procedures and company policies on efficiency and safety
were followed."24 

In this case, MMTC has made no satisfactory showing that it had paid more than lip service to its guidelines and policies
in hiring and supervision. Its failure to do so cannot but warrant the proper sanctions from this Court, considering that
MMTC is a government-owned public utility organized for the public welfare. Having failed to rebut the presumption of
negligence on its part, MMTC is primarily and directly liable for the damages caused by its employee, the erring driver,
Ajoc, pursuant to Article 2180 of the Civil Code, which provides as follows:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions-, but
also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the
minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority
and live in their company.1âwphi1

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by
their employees in the service of the branches in which the latter are employed or on the occasion of their
functions.

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

The State is responsible in like manner when it acts through a special agent; but not when the damage has been
caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176
shall be applicable.1âwphi1

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils
and students or apprentices, so long as they remain in their custody.

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

The owners of public utilities fall within the scope of this article.25 As earlier stated, MMTC is a public utility, organized
and owned by the government for public transport service. Hence, its liability to private respondents, for the negligent
and reckless acts of its driver, Ajoc, under Article 2180 of the Civil Code is both manifest and clear.

14. Umali vs. Bacani, 69 SCRA 263

Facts:
Storm with strong rain hit the Municipality of Alcala Pangasinan, which started from 2:00 o'clock in the afternoon and lasted
up to about midnight of the same day. During the storm, the banana plants standing on an elevated ground along the barrio
road in San Pedro Ili of said municipality and near the transmission line of the Alcala Electric Plant were blown down and fell
on the electric wire. As a result, the live electric wire was cut, one end of which was left hanging on the electric post and the
other fell to the ground under the fallen banana plants.

On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San Pedro Iii who was passing by saw the
broken electric wire and so he warned the people in the place not to go near the wire for they might get hurt. He also saw
Cipriano Baldomero, a laborer of the Alcala Electric Plant near the place and notified him right then and there of the broken
line and asked him to fix it, but the latter told the barrio captain that he could not do it but that he was going to look for the
lineman to fix it.

Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy of 3 years and 8 months old by the
name of Manuel P. Saynes, whose house is just on the opposite side of the road, went to the place where the broken line wire
was and got in contact with it. The boy was electrocuted and he subsequently died. It was only after the electrocution of
Manuel Saynes that the broken wire was fixed at about 10:00 o'clock on the same morning by the lineman of the electric
plant.

Ruling:

A careful examination of the record convinces Us that a series of negligence on the part of defendants' employees in the
Alcala Electric Plant resulted in the death of the victim by electrocution. First, by the very evidence of the defendant, there
were big and tall banana plants at the place of the incident standing on an elevated ground which were about 30 feet high and
which were higher than the electric post supporting the electric line, and yet the employees of the defendant who, with
ordinary foresight, could have easily seen that even in case of moderate winds the electric line would be endangered by
banana plants being blown down, did not even take the necessary precaution to eliminate that source of danger to the
electric line.

Second, even after the employees of the Alcala Electric Plant were already aware of the possible damage the storm of May 14,
1972, could have caused their electric lines, thus becoming a possible threat to life and property, they did not cut off from the
plant the flow of electricity along the lines, an act they could have easily done pending inspection of the wires to see if they
had been cut.

Third, employee Cipriano Baldomero was negligent on the morning of the incident because even if he was already made
aware of the live cut wire, he did not have the foresight to realize that the same posed a danger to life and property, and that
he should have taken the necessary precaution to prevent anybody from approaching the live wire; instead Baldomero left the
premises because what was foremost in his mind was the repair of the line, obviously forgetting that if left unattended to it
could endanger life and property.

On defendants' argument that the proximate cause of the victim's death could be attributed to the parents' negligence in
allowing a child of tender age to go out of the house alone, We could readily see that because of the aforementioned series of
negligence on the part of defendants' employees resulting in a live wire lying on the premises without any visible warning of
its lethal character, anybody, even a responsible grown up or not necessarily an innocent child, could have met the same fate
that befell the victim.

It may be true, as the lower Court found out, that the contributory negligence of the victim's parents in not properly taking
care of the child, which enabled him to leave the house alone on the morning of the incident and go to a nearby place cut wire
was very near the house (where victim was living) where the fatal fallen wire electrocuted him, might mitigate respondent's
liability, but we cannot agree with petitioner's theory that the parents' negligence constituted the proximate cause of the
victim's death because the real proximate cause was the fallen live wire which posed a threat to life and property on that
morning due to the series of negligence adverted to above committed by defendants' employees and which could have killed
any other person who might by accident get into contact with it. Stated otherwise, even if the child was allowed to leave the
house unattended due to the parents' negligence, he would not have died that morning where it not for the cut live wire he
accidentally touched.

Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this case) was only
contributory, the immediate and proximate cause of the injury being the defendants' lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the damages to be awarded. This law may be availed of by the petitioner but
does not exempt him from liability. Petitioner's liability for injury caused by his employees negligence is well defined in par. 4,
of Article 2180 of the Civil Code, which states:
 The owner and manager of an establishment or enterprise are likewise responsible for damages caused by
their employees in the service of the branches in which the latter are employed or on tile occasion of their
functions.

The negligence of the employee is presumed to be the negligence of the employer because the employer is supposed to
exercise supervision over the work of the employees. This liability of the employer is primary and direct (Standard Vacuum Oil
Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the proper defense for the employer to raise so that he may escape
liability is to prove that he exercised, the diligence of the good father of the family to prevent damage not only in the selection
of his employees but also in adequately supervising them over their work. This defense was not adequately proven as found
by the trial Court, and We do not find any sufficient reason to deviate from its finding.