Smith Bell Dodwell Shipping Agency Corporation vs. Borja, 383 SCRA 341, G.R. No.

143008 June 10,

2002

FACTS:

On September 23, 1987, Smith Bell (petitioner) requested the Bureau of Customs to inspect vessel M/T
King Family which was due to arrive at the port of Manila on September 24, 1987.

Customs Inspector Borja was instructed to inspect said vessel.

At about 11 o'clock in the morning on September 24, while M/T King Family was unloading chemicals
unto two (2) barges owned by ITTC (respondent), a sudden explosion occurred setting the vessels afire.
Seeing the fire and fearing for his life, Borja hurriedly jumped over board to save himself.

Borja survived but he became permanently disabled due to the incident. He made demands against
Smith Bell and ITTC for the damages caused by the explosion but both denied liabilities and attributed to
each other negligence.

RTC ruled in Borja’s favor and held Smith Bell liable for damages and loss of income, and ordered the
latter to pay actual damages for loss of earning capacity, moral damages and attorney’s fees.

CA affirmed.

ISSUE:

Who, if any, is liable for Borja’s injuries? SMITH BELL

HELD:

Smith Bell is liable. Both RTC and CA ruled that the fire and explosion originated from Smith Bell’s vessel.
(As

supported by the testimonies of the eyewitnesses and the investigation conducted by the Special Board
of Marine Inquiry and affirmed by the secretary of the Dept. of National Defense.)

Negligence is conduct that creates undue risk of harm to another.

It is the failure to observe that degree of care, precaution and vigilance that the circumstances justly
demand, whereby that other person suffers injury.

Smith Bell's vessel was carrying chemical cargo. While knowing that their vessel was carrying dangerous
inflammable chemicals, its officers and crew failed to take all the necessary precautions to prevent an
accident. Smith Bell was, therefore, negligent.

The three elements of quasi-delict are:

(a) damages suffered by the plaintiff,

(b) fault or negligence of the defendant, and

(c) the connection of cause and effect between the fault or negligence of the defendant and the
damages inflicted on the plaintiff.
All these elements were established in this case. Knowing fully well that it was carrying dangerous
chemicals, Smith Bell was negligent in not taking all the necessary precautions in transporting the cargo.

As a result of the fire and the explosion during the unloading of the chemicals from the vessel, Borja
suffered damages and injuries. Hence, the owner or the person in possession and control of a vessel and
the vessel are liable for all natural and proximate damage caused to persons and property by reason of
negligent management or navigation.

SC awarded: loss of earning capacity; moral damages and attorney’s fees under the Civil Code’s Article
2219, par. 2, and Article 2208, par. 11, respectively.

SYLLABUS:

Common Carriers; Quasi-Delicts; Torts; Negligence; Words and Phrases; Negligence is conduct that
creates undue risk of harm to another, the failure to observe that degree of care, precaution and
vigilance that the circumstances justly demand, whereby that other person suffers injury.— Negligence
is conduct that creates undue risk of harm to another. It is the failure to observe that degree of care,
precaution and vigilance that the circumstances justly demand, whereby that other person suffers
injury. Petitioner’s vessel was carrying chemical cargo—alkyl benzene and methyl methacrylate
monomer. While knowing that their vessel was carrying dangerous inflammable chemicals, its officers
and crew failed to take all the necessary precautions to prevent an accident. Petitioner was, therefore,
negligent.

Same; Same; Same; Same; Three Elements of Quasi-Delicts.—The three elements of quasi delict are: (a)
damages suffered by the plaintiff, (b) fault or negligence of the defendant, and (c) the connection of
cause and effect between the fault or negligence of the defendant and the damages inflicted on the
plaintiff. All these elements were established in this case. Knowing fully well that it was carrying
dangerous chemicals, petitioner was negligent in not taking all the necessary precautions in transporting
the cargo.

Same; Same; Same; Same; The owner or the person in possession and control of a vessel and the vessel
are liable for all natural and proximate damage caused to persons and property by reason of negligent
management or navigation.—The owner or the person in possession and control of a vessel and the
vessel are liable for all natural and proximate damage caused to persons and property by reason of
negligent management or navigation.

Damages; Life Expectancy; Factors in determining reasonableness of damages awarded under Article
1764 in conjunction with Article 2206 of the Civil Code.—Both parties have a point. In determining the
reasonableness of the damages awarded under Article 1764 in conjunction with Article 2206 of the Civil
Code, the factors to be considered are: (a) life expectancy (considering the health of the victim and the
mortality table which is deemed conclusive) and loss of earning capacity; (b) pecuniary loss, loss of
support and service; and (c) moral and mental sufferings. The loss of earning capacity is based mainly on
the number of years remaining in the person’s expected life span. In turn, this number is the basis of the
damages that shall be computed and the rate at which the loss sustained by the heirs shall be fixed. The
formula for the computation of loss of earning capacity is as follows: Net earning capacity = Life
expectancy x [Gross Annual Income - Living Expenses (50% of gross annual income)], where life
expectancy = 2/3 (80 - the age of the deceased).
Same; Same; Loss of Income; It is net income (or gross income less living expenses which is the one used
in the computation of the award for loss of income; When there is no showing that the living expenses
constituted a smaller percentage of the gross income, the Court fixes the living expenses at half of the
gross income—to hold that one would have used only a small part of the income, with the larger part
going to the support of one’s children, would be conjectural and unreasonable.—Petitioner is correct in
arguing that it is net income (or gross income less living expenses) which is to be used in the
computation of the award for loss of income. Villa Rey Transit v. Court of Appeals explained that “the
amount recoverable is not the loss of the entire earning, but rather the loss of that portion of the
earnings which the beneficiary would have received.” Hence, in fixing the amount of the said damages,
the necessary expenses of the deceased should be deducted from his earnings. In other words, only net
earnings, not gross earnings, are to be considered; that is, the total of the earnings less expenses
necessary in the creation of such earnings or income, less living and other incidental expenses. When
there is no showing that the living expenses constituted a smaller percentage of the gross income, we fix
the living expenses at half of the gross income. To hold that one would have used only a small part of
the income, with the larger part going to the support of one’s children, would be conjectural and
unreasonable.

Same; Same; Same; Retirement; Life expectancy should not be based on the retirement age of
government employees, which is pegged at 65; In calculating the life expectancy of an individual for the
purpose of determining loss of earning capacity under Article 2206(1) of the Civil Code, it is assumed
that the deceased would have earned income even after retirement from a particular job.—Counsel for
Respondent Borja is also correct in saying that life expectancy should not be based on the retirement
age of government employees, which is pegged at 65. In Negros Navigation Co, Inc. v. CA, the Court
resolved that in calculating the life expectancy of an individual for the purpose of determining loss of
earning capacity under Article 2206(1) of the Civil Code, it is assumed that the deceased would have
earned income even after retirement from a particular job. Respondent Borja should not be situated
differently just because he was a government employee. Private employees, given the retirement
packages provided by their companies, usually retire earlier than government employees; yet, the life
expectancy of the former is not pegged at 65 years.

Same; Same; Same; A person’s demise earlier than the estimated life span is of no moment for purposes
of determining loss of earning capacity, life expectancy remains at 80.—Petitioner avers that
Respondent Borja died nine years after the incident and, hence, his life expectancy of 80 years should
yield to the reality that he was only 59 when he actually died. We disagree. The Court uses the American
Experience/Expectancy Table of Mortality or the Actuarial or Combined Experience Table of Mortality,
which consistently pegs the life span of the average Filipino at 80 years, from which it extrapolates the
estimated income to be earned by the deceased had he or she not been killed. Respondent Borja’s
demise earlier than the estimated life span is of no moment. For purposes of determining loss of earning
capacity, life expectancy remains at 80. Otherwise, the computation of loss of earning capacity will
never become final, being always subject to the eventuality of the victim’s death. The computation
should not change even if Borja lived beyond 80 years. Fair is fair.
Delsan Transport Lines, Inc. vs. C & A Construction, Inc., 412 SCRA 524, G.R. No. 156034 October 1,
2003

FACTS:

NHA contracted with C&A to build a deflector wall for Vitas Reclamation Area in Vitas, Tondo.
Project was finished in 1994. In October 20, 1994 12mn Captain Jusep of Delsan lines owned
ship M/V Delsan express received information that there was a typhoon coming in from Japan.
At 8.35AM M/V Delsan Express attempted to get into North Harbor but could not. 10.00AM
M/V Delsan Express dropped anchor off of Vitas 4 miles away from Napocor barge. M/V Delsan
Express nearly collided with the Napocor barge but managed to avoid it and instead hit the
deflector wall causing almost 500,000 in damage. Petitioner refused to pay and thus a civil case
was filed against Delsan by C&A. TC Ruled emergency rule applied, CA found captain negligent.

ISSUE:

1.) W/N Captain Jusep is negligent

2.) W/N under Art. 2180 Delsan liable for the quasi-delict

HELD:

Captain Jusep is negligent by waiting for 8.35AM before bringing the ship to North Harbor
Petitioners are vicariously liable under 2180
• Art. 2176 of the Civil Code states that whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Captain Jusep received
the report 12MN and waited for more than 8 hours to move the ship, he likewise ignored the
weather report and in all angles failed to take action to prevent the damage.
• Under Art. 2180 whenever an employee’s negligence causes damage or injury to another there
arises a presumption juris tantum that the employer failed to exercise due diligence of a good
father of a family in the selection and supervision of its employees.
• Petitioner failed to present evidence that showed it formulated guidelines/rules for the proper
performance of functions of employees and any monitoring system.
• Not necessary to state petitioner is negligent in selecting or supervising employees as
negligence is presumed by operation of law. Allegations of negligence of the employee and
existence of employer-employee relationship in complaint are enough to make out a case of
quasi-delict under 2180.
SYLLABUS:

Civil Law; Negligence; The test for determining the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use the reasonable care and
caution which an ordinary prudent person would have used in the same situation? If not, then he is
guilty of negligence.—Article 2176 of the Civil 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.
The test for determining the existence of negligence in a particular case may be stated as follows: Did
the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinary
prudent person would have used in the same situation? If not, then he is guilty of negligence.

Same; Same; Emergency Rule; Trial court erred in applying the emergency rule; Under the rule, one who
suddenly finds himself in a place of danger, and is required to act without time to consider the best
means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt
what subsequently and upon reflection may appear to have been a better method unless the danger in
which he finds himself is brought about by his own negligence.—The trial court erred in applying the
emergency rule. Under this rule, one who suddenly finds himself in a place of danger, and is required to
act without time to consider the best means that may be adopted to avoid the impending danger, is not
guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been
a better method, unless the danger in which he finds himself is brought about by his own negligence.
Clearly, the emergency rule is not applicable to the instant case because the danger where Capt. Jusep
found himself was caused by his own negligence.

Same; Same; Quasi-delict; To avoid liability for a quasi-delict committed by his employee an employer
must overcome the presumption by presenting convincing proof that he exercised the care and
diligence of a good father of a family in the selection and supervision of his employee.—Whenever an
employee’s negligence causes damage or injury to another, there instantly arises a presumption juris
tantum that the employer failed to exercise diligentissimi patris families in the selection (culpa in
eligiendo) or supervision (culpa in vigilando) of its employees. To avoid liability for a quasi-delict
committed by his employee, an employer must overcome the presumption by presenting convincing
proof that he exercised the care and diligence of a good father of a family in the selection and
supervision of his employee.

Same; Same; Same; The required diligence of a good father of a family pertains not only to the selection
but also to the supervision of employees.—There is no question that petitioner, who is the
owner/operator of M/V Delsan Express, is also the employer of Capt. Jusep who at the time of the
incident acted within the scope of his duty. The defense raised by petitioner was that it exercised due
diligence in the selection of Capt. Jusep because the latter is a licensed and competent Master Mariner.
It should be stressed, however, that the required diligence of a good father of a family pertains not only
to the selection, but also to the supervision of employees. It is not enough that the employees chosen
be competent and qualified, inasmuch as the employer is still required to exercise due diligence in
supervising its employees.

Same; Same; Same; Once negligence on the part of the employees is shown, the burden of proving that
he observed the diligence in the selection and supervision of its employees shifts to the employer.—In
Fabre, Jr. v. Court of Appeals, it was held that due diligence in supervision requires the formulation of
rules and regulations for the guidance of employees and the issuance of proper instructions as well as
actual implementation and monitoring of consistent compliance with the rules. Corollarily, in Ramos v.
Court of Appeals, the Court stressed that once negligence on the part of the employees is shown, the
burden of proving that he observed the diligence in the selection and supervision of its employees shifts
to the employer.

Same; Same; Same; It is not necessary to state that petitioner was negligent in the supervision or
selection of its employees inasmuch as its negligence is presumed by operation of law; Allegations of
negligence against the employee and that of an employer-employee relation in the complaint are
enough to make out a case of quasi-delict under Articles 2180 of the Civil Code.—So also, petitioner
cannot disclaim liability on the basis of respondent’s failure to allege in its complaint that the former did
not exercise due diligence in the selection and supervision of its employees. In Viron Transportation Co.,
Inc. v. Delos Santos, it was held that it is not necessary to state that petitioner was negligent in the
supervision or selection of its employees, inasmuch as its negligence is presumed by operation of law.
Allegations of negligence against the employee and that of an employer-employee relation in the
complaint are enough to make out a case:of quasi-delict under Article 2180 of the Civil Code.

Philippine National Construction Corporation vs. Court of Appeals, 467 SCRA 569, G.R. No. 159270
August 22, 2005

FACTS:

PASUDECO, sugarcane transporter, requested permission from Toll Regulatory Board(TRB) to pass
through NCLEX as the national bridges along Abacan-Angeles andSapangMaragul via Magalang,
Pampanga were heavily damaged by the eruption ofMt. Pinatubo in 1991. PNCC, franchisee that
operates and maintains NCLEX, wasfurnished with the copy of the request to comment on. Thereafter,
TRB andPASUDECO entered into a Memorandum Agreement wherein PNCC was alsofurnished with a
copy. The latter was allowed to enter and pass through the NLEXprovided they abide to the terms and
conditions agreed upon. At around 2:30 a.m.on January 23, 1993, Alex Send in, the PNCC security
supervisor, and his co-employees Eduardo Ducusin and Vicente Pascual were patrolling Km. 72 going
northof the NLEX and saw a pile of sugarcane in the middle portion. Sendin, Ducusin andPascual
requested PASUDECO to clear the area as it was hazardous for the travelers.However, Engineer Oscar
Mallari, PASUDECO's equipment supervisor andtransportation superintendent, told them that no
equipment operator was availableas it was still very early. Thereafter, Sendin and company went back to
Km. 72 andmanned the traffic. At around 4:00 a.m., five (5) PASUDECO men arrived, andstarted clearing
the highway of the sugarcane. They stacked the sugarcane at theside of the road leaving a few flattened
sugarcanes scattered on the road. As thebulk of the sugarcanes had been piled and transferred along
the roadside, Sendinthought there was no longer a need to man the traffic. As dawn was
alreadyapproaching, Sendin and company removed the lighted cans and lanedividers. Sendin went to his
office in Sta. Rita, Guiguinto, Bulacan, and made thenecessary report. At about 6:30 a.m., Rodrigo S.
Arnaiz was driving his two-doorToyota Corolla with plate number FAG 961 along the NLEX at about 65
kilometersper hour. He was with his sister Regina Latagan, and his friend RicardoGeneralao ontheir way
to Baguio to attend their grandmother's first death anniversary. As thevehicle ran overthe scattered
sugarcane, it flew out of control and turned turtleseveral times. The accident threw the car about fifteen
paces away from thescattered sugarcane. Latagan sustained injuries and Arnaiz car was totally wrecked.

ISSUE:
Whether or not there was gross negligence on the part of Pasudeco and PNCC andthe latter be made to
pay for damages?

HELD:

the petition is bereft of merit.

The petitioner is the grantee of a franchise, giving it the right, privilege and authority to construct,
operate and maintain toll facilities covering the expressways, collectively known as the NLEX.[30]
Concomitant thereto is its right to collect toll fees... for the use of the said expressways and its
obligation to keep it safe for motorists.

The test for determining whether a person is negligent in doing an act whereby injury or damage results
to the person or property of another is this: could a prudent man, in the position of the person to whom
negligence is attributed, foresee harm to the person injured as a... reasonable consequence of the
course actually pursued? If so, the law imposes a duty on the actor to refrain from that course or to take
precautions to guard against its mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed... by the ignoring of the admonition born of this provision, is
always necessary before negligence can be held to exist.

In the case at bar, it is clear that the petitioner failed to exercise the requisite diligence in maintaining
the NLEX safe for motorists. The lighted cans and lane dividers on the highway were removed even as
flattened sugarcanes lay scattered on the ground.[36] The highway was still wet from the juice and sap
of the flattened sugarcanes.[37] The petitioner should have foreseen that the wet condition of the
highway would endanger motorists passing by at night or in the wee hours of the... morning.

The petitioner cannot escape liability under the MOA between PASUDECO and TRB, since respondent
Latagan was not a party thereto.

Moreover, the MOA refers to accidents or damages to the toll facilities. It does not cover damages to
property or injuries caused to motorists on the NLEX who are not privies to the MOA.

PASUDECO's negligence in transporting sugarcanes without proper harness/straps, and that of PNCC in
removing the emergency warning devices, were two successive negligent acts which were the direct and
proximate cause of Latagan's injuries. As such, PASUDECO and PNCC are jointly... and severally liable.

in the vintage case of Sabido v. Custodio:[39]

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

In Far Eastern Shipping Company v. Court of Appeals

Where several causes producing an injury are concurrent and each is an efficient cause without which
the injury would not have happened, the injury may be attributed to all or any of the causes and
recovery may be had against any or all of the... responsible persons although under the circumstances of
the case, it may appear that one of them was more culpable, and that the duty owed by them to the
injured person was not the same. No actor's negligence ceases to be a proximate cause merely because
it does not exceed the... negligence of other actors. Each wrongdoer is responsible for the entire result
and is liable as though his acts were the sole cause of the injury.

Where the concurrent or successive negligent acts or omissions of two or more persons, although acting
independently, are in combination with the... direct and proximate cause of a single injury to a third
person, it is impossible to determine in what proportion each contributed to the injury and either of
them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage
to a third... party, they become joint tortfeasors and are solidarily liable for the resulting damage under
Article 2194 of the Civil Code.

Anent respondent Arnaiz's negligence in driving his car, both the trial court and the CA agreed that it
was only contributory, and considered the same in mitigating the award of damages in his favor as
provided under Article 2179[42] of the New Civil Code.

SYLLABUS:

Franchises; Expressways; Concomitant to the grant of franchise giving the grantee the right, privilege
and authority to construct, operate and maintain toll facilities, and the right to collect toll fees for the
use of the expressways, is its obligations to keep it safe for the motorists.—The petitioner is the grantee
of a franchise, giving it the right, privilege and authority to construct, operate and maintain toll facilities
covering the expressways, collectively known as the NLEX. Concomitant thereto is its right to collect toll
fees for the use of the said expressways and its obligation to keep it safe for motorists. Same; Same;
Torts; Quasi-Delicts; Elements.—There are three elements of a quasi-delict: (a) damages suffered by the
plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond;
and (c) the connection of cause and effect between the fault or negligence of the defendant and the
damages incurred by the plaintiff. Article 2176 of the New Civil Code provides: Art. 2176. 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.

Same; Same; Same; Same; Negligence; Test; Words and Phrases; Negligence is the omission to do
something which a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent and reasonable man
would do; The test for determining whether a person is negligent is: could a prudent man, in the
position of the person to whom negligence is attributed, foresee harm to the person injured as a
reasonable consequence of the course actu ally pursued?—Negligence is the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and reasonable man would do. It
also refers to the conduct which creates undue risk of harm to another, the failure to observe that
degree of care, precaution and vigilance that the circumstance justly demand, whereby that other
person suffers injury. The Court declared the test by which to determine the existence of negligence in
Picart v. Smith, viz.: The test by which to determine the existence of negligence in a particular case may
be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given
case is not determined by reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that. The test for determining whether a person is negligent in
doing an act whereby injury or damage results to the person or property of another is this: could a
prudent man, in the position of the person to whom negligence is attributed, foresee harm to the
person injured as a reasonable consequence of the course actually pursued? If so, the law imposes a
duty on the actor to refrain from that course or to take precautions to guard against its mischievous
results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the
ignoring of the admonition born of this provision, is always necessary before negligence can be held to
exist.

Same; Same; Same; Same; Same; Where the concurrent or successive negligent acts or omission of two
or more persons, although acting independently of each other, are, in combination the direct and
proximate cause of a single injury to a third person and it is impossible to determine in what proportion
each contributed to the injury, either is responsible for the whole injury, even though his act alone
might not have caused the entire injury, or the same damage might have resulted from the acts of the
other tort-feasor.—PASUDECO’s negligence in transporting sugarcanes without proper harness/straps,
and that of PNCC in removing the emergency warning devices, were two successive negligent acts which
were the direct and proximate cause of Latagan’s injuries. As such, PASUDECO and PNCC are jointly and
severally liable. As the Court held in the vintage case of Sabido v. Custodio: According to the great
weight of authority, where the concurrent or successive negligent acts or omission of two or more
persons, although acting independently of each other, are, in combination, the direct and proximate
cause of a single injury to a third person and it is impossible to determine in what proportion each
contributed to the injury, either is responsible for the whole injury, even though his act alone might not
have caused the entire injury, or the same damage might have resulted from the acts of the other tort-
feasor. ...

Same; Same; Same; Same; Same; Contributory Negligence; Words and Phrases; 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 protection.—Anent
respondent Arnaiz’s negligence in driving his car, both the trial court and the CA agreed that it was only
contributory, and considered the same in mitigating the award of damages in his favor as provided
under Article 2179 of the New Civil Code. 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.

Same; Same; Same; Same; Same; Appeals; Pleadings and Practice; Due Process; Where a party adopts a
certain theory in the trial court, he will not be permitted to change his theory on appeal, for to permit
him to do so would not only be unfair to the other party, but it would also be offensive to the basic rules
of fair play, justice and due process.—Even the petitioner itself described Arnaiz’s negligence as
contributory. In its Answer to the complaint filed with the trial court, the petitioner asserted that “the
direct and proximate cause of the accident was the gross negligence of PASUDECO personnel which
resulted in the spillage of sugarcane and the apparent failure of the PASUDECO workers to clear and
mop up the area completely, coupled with the contributory negligence of Arnaiz in driving his car at an
unreasonable speed.” However, the petitioner changed its theory in the present recourse, and now
claims that the proximate and immediate cause of the mishap in question was the reckless imprudence
or gross negligence of respondent Arnaiz. Such a change of theory cannot be allowed. When a party
adopts a certain theory in the trial court, he will not be permitted to change his theory on appeal, for to
permit him to do so would not only be unfair to the other party but it would also be offensive to the
basic rules of fair play, justice and due process.

Philippine National Railways vs. Court of Appeals, 536 SCRA 147, G.R. No. 157658 October 15, 2007

FACTS:

In the early afternoon of April 27, 1992, Jose Amores (Amores) was traversing the railroad tracks in
Kahilum II Street, Pandacan, Manila. Before crossing the railroad track, he stopped for a while then
proceeded accordingly. Unfortunately, just as Amores was at the intersection, a Philippine National
Railways (PNR) train with locomotive number T-517 turned up and collided with the car.

At the time of the mishap, there was neither a signal nor a crossing bar at the intersection to warn
motorists of an approaching train. Aside from the railroad track, the only visible warning sign at that
time was the defective standard signboard STOP, LOOK and LISTEN wherein the sign Listen was lacking
while that of Look was bent.[5] No whistle blow from the train was likewise heard before it finally
bumped the car of Amores.[6] After impact, the car was dragged about ten (10) meters beyond the
center of the crossing.[7] Amores died as a consequence thereof.

In their Answer,[10] the petitioners denied the allegations, stating that the train was railroad-worthy
and without any defect. According to them, the proximate cause of the death of Amores was his own
carelessness and negligence, and Amores wantonly disregarded traffic rules and regulations in crossing
the railroad tracks and trying to beat the approaching train. They admitted that there was no crossing
bar at the site of the accident because it was merely a barangay road.[11] PNR stressed that it exercised
the diligence of a good father of a family in the selection and supervision of the locomotive driver and
train engineer, Borja, and that the latter likewise used extraordinary diligence and caution to avoid the
accident. Petitioners further asserted that respondents had the last clear chance to avoid the accident
but recklessly failed to do so.

The RTC rationalized that the proximate cause of the collision was Amores fatal misjudgment and the
reckless course of action he took in crossing the railroad track even after seeing or hearing the oncoming
train.

On appeal, the CA reversed the RTC decision. The appellate court found the petitioners negligent. The
court based the petitioners negligence on the failure of PNR to install a semaphore or at the very least,
to post a flagman, considering that the crossing is located in a thickly populated area. Moreover, the
signboard Stop, Look and Listen was found insufficient because of its defective condition as described
above. Lastly, no negligence could be attributed to Amores as he exercised reasonable diligence in
crossing the railroad track.

ISSUE:

whether the appellate court was correct in ascribing negligence on the part of the petitioners

HELD:

It was ascertained beyond quandary that the proximate cause of the collision is the negligence and
imprudence of the petitioner PNR and its locomotive driver, Borja, in operating the passenger train.

As the action is predicated on negligence, the relevant provision is Article 2176 of the New Civil Code,
which states 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 was no pre-existing contractual relation between
the parties, is called quasi-delict and is governed by the provisions of this chapter.

We have thoroughly reviewed the records of the case and we find no cogent reason to reverse the
appellate courts decision. Negligence has been defined as the failure to observe for the protection of
the interests of another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.[15] Using the aforementioned philosophy, it
may be reliably concluded that there is no hard and fast rule whereby such degree of care and vigilance
is calibrated; it is dependent upon the circumstances in which a person finds himself. All that the law
requires is that it is perpetually compelling upon a person to use that care and diligence expected of
sensible men under comparable circumstances.[16]

We hold that the petitioners were negligent when the collision took place. The transcript of
stenographic notes reveals that the train was running at a fast speed because notwithstanding the
application of the ordinary and emergency brakes, the train still dragged the car some distance away
from the point of impact. Evidence likewise unveils the inadequate precautions taken by petitioner PNR
to forewarn the public of the impending danger. Aside from not having any crossing bar, no flagman or
guard to man the intersection at all times was posted on the day of the incident. A reliable signaling
device in good condition, not just a dilapidated Stop, Look and Listen signage because of many years of
neglect, is needed to give notice to the public. It is the responsibility of the railroad company to use
reasonable care to keep the signal devices in working order. Failure to do so would be an indication of
negligence.

As held in the case of Philippine National Railway v. Brunty,[17] it may broadly be stated that railroad
companies owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons
and property at railroad crossings, which duties pertain both to the operation of trains and to the
maintenance of the crossings. Moreover, every corporation constructing or operating a railway shall
make and construct at all points where such railway crosses any public road, good, sufficient, and safe
crossings, and erect at such points, at sufficient elevation from such road as to admit a free passage of
vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of the
proximity of the railway, and warn persons of the necessity of looking out for trains.[18] The failure of
the PNR to put a cross bar, or signal light, flagman or switchman, or semaphore is evidence of
negligence and disregard of the safety of the public, even if there is no law or ordinance requiring it,
because public safety demands that said device or equipment be installed.

The petitioners insist that a train has a right-of-way in a railroad crossing under the existing laws. They
derive their theory from Section 42 (d), Article III of R.A. 4136, otherwise known as the Land
Transportation and Traffic Code, which states that:

The driver of a vehicle upon a highway shall bring to a full stop such vehicle before traversing any
through highway or railroad crossing: Provided, That when it is apparent that no hazard exists, the
vehicle may be slowed down to five miles per hour instead of bringing it to a full stop.

They claim that motorists are enjoined by law to stop, look and listen before crossing railroad tracks and
that a heavier responsibility rests upon the motorists in avoiding accidents at level crossings.

It is true that one driving an automobile must use his faculties of seeing and hearing when nearing a
railroad crossing. However, the obligation to bring to a full stop vehicles moving in public highways
before traversing any through street only accrues from the time the said through street or crossing is so
designated and sign-posted. From the records of the case, it can be inferred that Amores exercised all
the necessary precautions required of him as to avoid injury to himself and to others. The witnesses
testimonies showed that Amores slackened his speed, made a full stop, and then proceeded to cross the
tracks when he saw that there was no impending danger to his life. Under these circumstances, we are
convinced that Amores did everything, with absolute care and caution, to avoid the collision.

It is settled that every person or motorist crossing a railroad track should use ordinary prudence and
alertness to determine the proximity of a train before attempting to cross. We are persuaded that the
circumstances were beyond the control of Amores for no person would sacrifice his precious life if he
had the slightest opportunity to evade the catastrophe. Besides, the authority in this jurisdiction is that
the failure of a railroad company to install a semaphore or at the very least, to post a flagman or
watchman to warn the public of the passing train amounts to negligence.[19]

In view of the foregoing, We will now discuss the liability of petitioner PNR. Article 2180[20] of the New
Civil Code discusses the liability of the employer once negligence or fault on the part of the employee
has been established. The employer is actually liable on the assumption of juris tantum that the
employer failed to exercise diligentissimi patris families in the selection and supervision of its
employees. The liability is primary and can only be negated by showing due diligence in the selection
and supervision of the employee, a factual matter that has not been demonstrated.[21] Even the
existence of hiring procedures and supervisory employees cannot be incidentally invoked to overturn
the presumption of negligence on the part of the employer.[22]

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated March 31, 2003 in CA-
G.R. CV No. 54906 is hereby AFFIRMED.

SO ORDERED.

SYLLABUS:

Torts; Quasi-Delicts; Negligence; Proximate Cause; Words and Phrases; Negligence is the failure to
observe for the protection of the interests of another person that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other person suffers injury—all that the
law requires is that it is perpetually compelling upon a person to use that care and diligence expected of
sensible men under comparable circumstances.—We have thoroughly reviewed the records of the case
and we find no cogent reason to reverse the appellate court’s decision. Negligence has been defined as
“the failure to observe for the protection of the interests of another person that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby such other person suffers
injury.” Using the aforementioned philosophy, it may be reliably concluded that there is no hard and fast
rule whereby such degree of care and vigilance is calibrated; it is dependent upon the circumstances in
which a person finds himself. All that the law requires is that it is perpetually compelling upon a person
to use that care and diligence expected of sensible men under comparable circumstances.

Transportation Laws; Common Carriers; Railroad Companies; Railroad companies owe to the public a
duty of exercising a reasonable degree of care to avoid injury to persons and property at railroad
crossings, which duties pertain both to the operation of trains and to the maintenance of the
crossings.—As held in the case of Philippine National Railway v. Brunty, 506 SCRA 685 (2006), it may
broadly be stated that railroad companies owe to the public a duty of exercising a reasonable degree of
care to avoid injury to persons and property at railroad crossings, which duties pertain both to the
operation of trains and to the maintenance of the crossings. Moreover, every corporation constructing
or operating a railway shall make and construct at all points where such railway crosses any public road,
good, sufficient, and safe crossings, and erect at such points, at sufficient elevation from such road as to
admit a free passage of vehicles of every kind, a sign with large and distinct letters placed thereon, to
give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains.
The failure of the PNR to put a cross bar, or signal light, flagman or switchman, or semaphore is evidence
of negligence and disregard of the safety of the public, even if there is no law or ordinance requiring it,
because public safety demands that said device or equipment be installed.

Same; Same; Same; Land Transportation and Traffic Code; While it is true that a person driving an
automobile must use his faculties of seeing and hearing when nearing a railroad crossing, the obligation
to bring to a full stop vehicles moving in public highways before traversing any “through street” only
accrues from the time the said “through street” or crossing is so designated and sign-posted.—It is true
that one driving an automobile must use his faculties of seeing and hearing when nearing a railroad
crossing. However, the obligation to bring to a full stop vehicles moving in public highways before
traversing any “through street” only accrues from the time the said “through street” or crossing is so
designated and sign-posted. From the records of the case, it can be inferred that Amores exercised all
the necessary precautions required of him as to avoid injury to himself and to others. The witnesses’
testimonies showed that Amores slackened his speed, made a full stop, and then proceeded to cross the
tracks when he saw that there was no impending danger to his life. Under these circumstances, we are
convinced that Amores did everything, with absolute care and caution, to avoid the collision.

Same; Same; Same; The authority in this jurisdiction is that the failure of a railroad company to install a
semaphore or at the very least, to post a flagman or watchman to warn the public of the passing train
amounts to negligence.—It is settled that every person or motorist crossing a railroad track should use
ordinary prudence and alertness to determine the proximity of a train before attempting to cross. We
are persuaded that the circumstances were beyond the control of Amores for no person would sacrifice
his precious life if he had the slightest opportunity to evade the catastrophe. Besides, the authority in
this jurisdiction is that the failure of a railroad company to install a semaphore or at the very least, to
post a flagman or watchman to warn the public of the passing train amounts to negligence.

Same; Same; Same; The employer is actually liable for the negligence or fault on the part of its employee
on the assumption of juris tantum that the employer failed to exercise diligentissimi patris families in
the selection and supervision of its employees.—We will now discuss the liability of petitioner PNR.
Article 2180 of the New Civil Code discusses the liability of the employer once negligence or fault on the
part of the employee has been established. The employer is actually liable on the assumption of juris
tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision
of its employees. The liability is primary and can only be negated by showing due diligence in the
selection and supervision of the employee, a factual matter that has not been demonstrated. Even the
existence of hiring procedures and supervisory employees cannot be incidentally invoked to overturn
the presumption of negligence on the part of the employer.

Guillang vs. Bedania, 588 SCRA 73, G.R. No. 162987 May 21, 2009

FACTS:

One afternoon of October 1994, Guillang was driving his Corolla along Aguinaldo Highway in Cavite
when it was hit by a turning 10-wheeler truckdriven by Rodolfo Bedania and owned by Rodolfo de Silva.
The passengers of the car were rushed to the Medical Center in Dasmariñas, Cavite fortreatment.
Because of severe injuries, Antero, one of the passengers, waslater transferred to the Philippine General
Hospital. However, on 3 November1994, Antero died due to the injuries he sustained from the collision.
The carwas a total wreck while the truck sustained minor damage.

On 24 April 1995, petitioners Genaro, Llanillo, Dignadice, and the heirs of Antero instituted a complaint
for damages based on quasi-delict againstrespondents Bedania and de Silva.

On 5 December 2000, the trial court rendered a decision in favor of petitioners. The trial court found
Bedania grossly negligent for recklesslymaneuvering the truck by making a sudden U-turn in the highway
without dueregard to traffic rules and the safety of other motorists. The trial court alsodeclared de Silva
grossly negligent in the selection and supervision of hisdriver, Bedania.

On appeal, the CA reversed the decision of the lower court and dismissed thecivil case for lack of merit.
Petitioners then filed a MR but to no avail. Hence,this case.

ISSUE:

Whether Bedania was grossly negligent for recklessly maneuvering the truck by making a sudden U-turn
in the highway without due regard to traffic rules and the safety of other motorists?

HELD:
The trial court held Bedania and de Silva, as Bedania’s employer, liablebecause the proximate cause of
the collision was the sudden U-turn executedby Bedania without any signal lights. On the other hand,
the Court of Appealsreversed the trial court’s decision and held Genaro liable because theproximate
cause of the collision was Genaro’s failure to stop the car despiteseeing that Bedania was making a U-
turn.

Negligence

is defined as the failure to observe for the protection of theinterest of another person that degree of
care, precaution, and vigilancewhich the circumstances justly demand, whereby such other person
suffersinjury. In Picart v. Smith, we held that the test of negligence is whether thedefendant in doing the
alleged negligent act used that reasonable care and caution which an ordinary person would have used
in the same situation.

The conclusion of the Court of Appeals that Genaro was negligent is notsupported by the evidence on
record. Videna’s testimony was inconsistentwith the police records and report that he made on the day
of the collision.First, Videna testified that the car was running fast and overtook anothervehicle that
already gave way to the truck. But this was not indicated in eitherthe report or the police records.
Moreover, if the car was speeding, thereshould have been skid marks on the road when Genaro stepped
on the brakes to avoid the collision. But the sketch of the accident showed no skid marksmade by the
car. Second, Videna testified that the petitioners came from adrinking spree because he was able to
smell liquor. But in the report, Videnaindicated that the condition of Genaro was "normal." Videna did
not indicatein the report that Genaro "had been drinking liquor" or that Genaro "wasobviously drunk."
Third, Videna testified that when he arrived at the scene,Bedania was inside his truck. This contradicts
the police records where Videnastated that after the collision Bedania escaped and abandoned
thevictims. The police records also showed that Bedania was arrested by thepolice at his barracks in
Anabu, Imus, Cavite and was turned over to the policeonly on 26 October 1994.

Under Article 2185 of the Civil Code, unless there is proof to the contrary, aperson driving a vehicle is
presumed negligent if at the time of the mishap, hewas violating any traffic regulation.

In this case, the report showed that the truck, while making the U-turn, failedto signal, a violation of
traffic rules. The police records also stated that, afterthe collision, Bedania escaped and abandoned the
petitioners and histruck. This is another violation of a traffic regulation. Therefore, thepresumption
arises that Bedania was negligent at the time of the mishap.

The evidence presented in this case also does not support the conclusion of the Court of Appeals that
the truck had already executed the U-turn beforethe impact occurred. If the truck had fully made the U-
turn, it should havebeen hit on its rear .If the truck had already negotiated even half of the turnand is
almost on the other side of the highway, then the truck should havebeen hit in the middle portion of the
trailer or cargo compartment. But theevidence clearly shows, and the Court of Appeals even declared,
that the carhit the truck’s gas tank, located at the truck’s right middle portion, whichdisproves the
conclusion of the Court of Appeals that the truck had alreadyexecuted the U-turn when it was hit by the
car.
Contrary to the conclusion of the Court of Appeals, the sheer size of the truckdoes not make it
improbable for the truck to execute a sudden U-turn. Thetrial court’s decision did not state that the
truck was traveling at a fast speedwhen it made the U-turn. The trial court said the truck made a
"sudden" U-turn, meaning the U-turn was made unexpectedly and with no warning, asshown by the fact
that the truck’s signal lights were not turned on.

Clearly, Bedania’s negligence was the proximate cause of the collision whichclaimed the life of Antero
and injured the petitioners. Proximate cause is thatwhich, in the natural and continuous sequence,
unbroken by any efficient,intervening cause, produces the injury, and without which the result would
nothave occurred.The cause of the collision is traceable to the negligent act of Bedania for if the U-turn
was executed with the proper precaution, the mishapin all probability would not have happened. The
sudden U-turn of the truckwithout signal lights posed a serious risk to oncoming motorists.
Bedaniafailed to prevent or minimize that risk. The truck’s sudden U-turn triggered aseries of events
that led to the collision and, ultimately, to the death of Antero and the injuries of petitioners.

SYLLABUS:

Torts; Quasi-Delicts; Requisites; Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done, and such fault or negligence, if there is no
pre-existing contractual relations between the parties, is called a quasi-delict.—Article 2176 of the Civil
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
contrac tual relations between the parties, is called a quasi-delict. To sustain a claim based on quasi-
delict, the following requisites must concur: (a) damage suffered by the plaintiff; (b) fault or negligence
of defendant; and (c) connection of cause and effect between the fault or negligence of defendant and
the damage incurred by the plaintiff.

Same; Same; Negligence; The test of negligence is whether the defendant in doing the alleged negligent
act used that reasonable care and caution which an ordinary person would have used in the same
situation.—Negligence is defined as the failure to observe for the protection of the interest of another
person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury. In Picart v. Smith, 37 Phil. 809 (1918), we held that the test of
negligence is whether the defendant in doing the alleged negligent act used that reasonable care and
caution which an ordinary person would have used in the same situation.

Same; Same; Same; Motor Vehicles; Unless there is proof to the contrary, a person driving a vehicle is
presumed negligent if at the time of the mishap, he was violating any traffic regulation.—Under Article
2185 of the Civil Code, unless there is proof to the contrary, a person driving a vehicle is presumed
negligent if at the time of the mishap, he was violating any traffic regulation. In this case, the report
showed that the truck, while making the U-turn, failed to signal, a violation of traffic rules. The police
records also stated that, after the collision, Bedania escaped and abandoned the petitioners and his
truck. This is another violation of a traffic regulation. Therefore, the presumption arises that Bedania
was negligent at the time of the mishap.
Same; Same; Same; Same; Traffic Rules; U-turns are generally not advisable particularly on major
streets.—The Court of Appeals also concluded that Bedania made the U-turn at an intersection. Again,
this is not supported by the evidence on record. The police sketch does not indicate an intersection and
only shows that there was a road leading to the Orchard Golf Course near the place of the collision.
Furthermore, U-turns are generally not advisable particularly on major streets. Contrary to Videna’s
testimony, it is not normal for a truck to make a U-turn on a highway. We agree with the trial court that
if Bedania wanted to change direction, he should seek an intersection where it is safer to maneuver the
truck. Bedania should have also turned on his signal lights and made sure that the highway was clear of
vehicles from the opposite direction before executing the U-turn.

Same; Same; Same; Same; Words and Phrases; Proximate cause is that which, in the natural and
continuous sequence, unbroken by any efficient, intervening cause, produces the injury, and without
which the result would not have occurred.—Bedania’s negligence was the proximate cause of the
collision which claimed the life of Antero and injured the petitioners. Proximate cause is that which, in
the natural and continuous sequence, unbroken by any efficient, intervening cause, produces the injury,
and without which the result would not have occurred. The cause of the collision is traceable to the
negligent act of Bedania for if the U-turn was executed with the proper precaution, the mishap in all
probability would not have happened. The sudden U-turn of the truck without signal lights posed a
serious risk to oncoming motorists. Bedania failed to prevent or minimize that risk. The truck’s sudden
U-turn triggered a series of events that led to the collision and, ultimately, to the death of Antero and
the injuries of petitioners.

Same; Same; Damages; Civil indemnity for death caused by a quasi-delict is pegged at P50,000.—
According to prevailing jurisprudence, civil indemnity for death caused by a quasi-delict is pegged at
P50,000. Moral damages in the amount of P50,000 is also awarded to the heirs of the deceased taking
into consideration the pain and anguish they suffered. Bienvenido Guillang (Bienvenido), Antero’s son,
testified that Sofia, Antero’s wife and his mother, became depressed after Antero’s death and that Sofia
died a year after. Bienvenido also testified on the pain and anguish their family suffered as a
consequence of their father’s death. We sustain the trial court’s award of P50,000 as indemnity for
death and P50,000 as moral damages to the heirs of Antero.

Same; Same; Same; Moral Damages; Moral damages may be recovered in quasi-delicts causing physical
injuries, and exemplary damages may be granted if the defendant acted with gross negligence.—Moral
damages may be recovered in quasi-delicts causing physical injuries. However, in accordance with
prevailing jurisprudence, we reduce the award of moral damages from P50,000 to P30,000 each to
Llanillo, Dignadice, and Genaro since they only suffered physical injuries brought about by the collision.
In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. While
the amount of exemplary damages need not be proved, the plaintiff must show that he is entitled to
moral, temperate or compensatory damages before the court may consider the question of whether or
not exemplary damages should be awarded. In this case, Bedania was grossly negligent in suddenly
making a U-turn in the highway without signal lights. To serve as an example for the public good, we
affirm the trial court’s award of exemplary damages in the amount of P50,000.

Same; Same; Same; Attorney’s Fees; Under Article 2208 of the Civil Code, attorney’s fees may be
recovered when, as in this case, exemplary damages are awarded.—We affirm the trial court’s award of
attorney’s fees in the amount of P100,000. Under Article 2208 of the Civil Code, attorney’s fees may be
recovered when, as in this case, exemplary damages are awarded.