Week 4 Cases

G.R. No.
L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO
BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, Plaintiffs-Appellants,
vs
MARIANO MEDINA, Defendant-Appellant.
SYLLABUS
1. DAMAGES; CARRIER’S LIABILITY; WORDS AND PHRASES; PROXIMATE CAUSE DEFINED. — "The proximate legal cause is
that the acting first and producing the injury, either immediately or by setting other events in motion., all constituting a
natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final
event in the chain immediately affecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as ordinarily prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some person might be probably
result therefrom."
2. ID.; ID.; OVERTURNING OF BUS; PROXIMATE CAUSE OF DEATH. — When a vehicle turned not only on its side but
completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of
the men with the lighted torch was in response to the call for help, made not only by the passengers, but most probably
by the driver and the conductor themselves, and that because it was very dark (about 2:30 in the morning), the rescuers
had to carry a light with them; and coming as they did from a rural area where the lanterns and flashlights were not
available, they had to use a torch the most handy and available; and what was more natural, that said rescuers should
innocently approached the overtuned vehicle to extend the aid and effect the rescue requested from them. Held: That
the proximate cause of the death of B was overturning of the vehicle thru the negligence of defendant and his agent.
3. ID.; ID.; CARRIER’S NEGLIGENCE; BURNING OF THE BUS. — The burning of the bus wherein some of the passengers
were trapped can also be attributed to the negligence of the carrier, through the driver and conductor who were on the
road walking back and forth. They should and must have known that in the position in which the overtuned bus was,
gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from
the fact that gasoline when spilled, especially over a large area, can be smelt and detected even from a distance, Held:
That the failure of the driver and the conductor to have cautioned or taken steps to warn the rescuers not to bring the
lighted torch too near the bus, constitute negligence on the part of the agents of the carrier under the provisions of the
Civil Code, particularly, Article 1733, 1759 and 1763 thereof.
DECISION
Shortly after midnight, on September 13, 1952, bus No. 30 of the Medina Transportation, operated by its owner,
defendant Mariano Medina, under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to
Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver
and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara,
seated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated on the left side of the driver, and a woman named Natalia Villanueva,
seated just behind the four last mentioned. At about 2 :00 o’clock that same morning, while the bus was running within
the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or
ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way
they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus.
Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus,
particularly, shouts for help from Bataclan and Lara, who said that they could not get out of the bus. There, is nothing in
the evidence to show whether or not the passengers already free from the wreck, including the driver and the
conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls
or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them
carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men
presumably approached the overturned bus, and almost immediately, a fierce fire started, burning and all but
consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline
began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of
the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered the
call for help set it on fire.
That same day, the charred bodies of the four doomed passengers inside the bus were removed and duly identified,
specially that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five
minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary
damages and attorney’s fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs, plus P600 as attorney’s fee, plus P100, the value of the merchandise being carried by Bataclan to
Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of
Appeals, but the latter court endorsed the appeal to us because of the value involved in the claim in the complaint.
Our New Civil Code amply provides for the responsibility of a common carrier to its passengers and their goods. For
purposes of reference, we are reproducing the pertinent codal provisions:
"ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them,
according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5,
6, and 7 while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756."
"ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with a due regard for all the circumstances."
"ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755."
"ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or wilful acts of
the former’s employees, although such employees may have acted beyond the scope of their authority or in violation of
the orders of the common carriers.
This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a
family in the selection and supervision of their employees."
"ART. 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilful acts or
negligence of other passengers or of strangers, if the common carrier’s employees through the exercise of the diligence
of a good father of a family could have prevented or stopped the act or omission."
We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina
Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial
court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to
show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by
the fact that according to the testimony of the witnesses, including that of the defense, from the point where one of the
front tires burst up to the canal where the bus overturned after zig-zagging, there was a distance of about 150 meters.
The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at
which the bus must have been running, its momentum carried it over a distance of 150 meters before it fell into the
canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree.
The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus,
but rather, the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the
time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so
damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory
definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-
appellants in their brief. It is as follows:
". . .’that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.’ And more comprehensively, ‘the proximate legal cause is
that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a
event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom."
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical
injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if
some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contend
that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case and
under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause of the death of
Bataclan was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but
completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of
the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably,
by the driver and the conductor themselves, and that because it was very dark (about 2:30 in the morning), the rescuers
had to carry a light with them; and coming as they did from a rural area where lanterns and flashlights were not
available, they had to use a torch, the most handy and available; and what was more natural than that said rescuers
should innocently approach the overturned vehicle to extend the aid and effect the rescue requested from them. In
other words, the coming of the men with the torch was to be expected and was a natural sequence of the overturning of
the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can
also in part be attributed to the negligence of the carrier, through its driver and its conductor. According to the
witnesses, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and
must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially
over a large area, can be smelt and detected even from a distance, and yet neither the driver nor the conductor would
appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said
negligence on the part of the agents of the carrier come under the codal provisions above- reproduced, particularly,
Articles 1733, 1759 and 1763.
As regards the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as the
other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS would
constitute satisfactory compensation, this to include compensatory, moral, and other damages. We also believe that
plaintiffs are entitled to attorney’s fees, and assessing the legal services rendered by plaintiffs’ attorneys not only in the
trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney’s
fees may well be fixed at EIGHT HUNDRED (P800) PESOS. The award made by the trial court of ONE HUNDRED (P100)
PESOS for the loss of the merchandise carried by the deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengers
who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the
defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors,
telling said inspector to have the tires of the bus changed immediately because they were already old, and that as a
matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his instructions. If
this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure
the safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed
to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there
is reason to believe that the driver operated and drove his vehicle negligently, resulting in the death of four of his
passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally dismissed, because according to the fiscal,
the witnesses on whose testimony he was banking to support the complaint, either failed to appear or were reluctant to
testify. But the record of the case before us shows that several witnesses, passengers in that bus, willingly and
unhesitatingly testified in court to the effect that the said driver was negligent. In the public interest, the prosecution of
said erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of
passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial
Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONE
THOUSAND (P1,000) PESOS to SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED
(P800) PESOS, for the death of Bataclan and for attorney’s fees, respectively, the decision appealed from is hereby
affirmed, with costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion., Reyes, J. B. L., Endencia and Felix, JJ.,
concur.
G.R. No. L-39309 November 24, 1933
TEH LE KIM, plaintiff-appellant,
vs.
PHILIPPINE AERIAL TAXI CO., INC., defendant-appellee.
This is an appeal taken by the plaintiff Teh Le Kim from the judgment rendered by the Court of First Instance of Manila,
absolving the defendant Philippine Aerial Taxi Co., Inc., from the complaint, which was dismissed, without special
pronouncement as to costs.
In support of his appeal, the appellant assigns five alleged errors as committed by the trail court, which we shall discuss
in the course of this decision.
The following facts have been proven by a preponderance of evidence presented during the trial, to wit:
On the Morning of September 4, 1931, the plaintiff herein bought, in Manila, a passenger ticket for a flight to Iloilo in
one of the defendant company's hydroplanes starting from Madrigal Field in Pasay. Inasmuch as the engine of the
plane Mabuhay, in which he was to take the flight, was not working satisfactorily, the said plaintiff had to wait for some
time. While the engine was being tested, the plaintiff saw how it was started by turning the propeller repeatedly and
how the man who did it ran away from it each time in order not to be caught by the said propeller. Before the
plane Mabuhay was put in condition for the flight, the plane Taal arrived and it was decided to have the plaintiff make
the flight therein. The plaintiff and his companion were carefully carried from the beach to the plane, entering the same
by the rear or tail end, and were placed in their seats to which they were strapped. Later, they were shown how the
straps could be tightened or loosened in case of accident and were instructed further not to touch anything in the plane.
After an uneventful flight, the plane landed on the waters of Guimaras Strait, in front of Iloilo, and taxied toward the
beach until its pontoons struck bottom, when the plane stopped. the pilot shut off the gasoline feed pipe, permitting the
engine, however, to continue to function until all the gasoline was drained from the feed pipe and carburetor. This
operation was necessary in accordance with the established practice of aviation in order to avoid danger of fire which
would exist if the pipes and carburetor remained full of gasoline, and to prevent the sudden cooling of the engine which
might cause serious damage, especially to the valves.
When the pilot observed that a banca was approaching rapidly on the right hand side of the plane, he arose signalled
and shouted to the boatman to keep his banca at a distance from the plane, inasmuch as there were waves and quite a
strong current, and he feared that the banca, which had a high prow, might collide with the plane and damage either
the wing or the pontoon thereof. While he was doing this, he heard the propeller strike something. He immediately
turned off the switch and, looking on the other side, he saw Bohn picking up the plaintiff out of the water.
What really happened was that at the moment the pontoons touched bottom and while the pilot was signalling to
the banca, the plaintiff unfastened the straps around him and, not even waiting to put on his hat, climbed over the door
to the lower wing, went down the ladder to the pontoon and walked along the pontoon toward the revolving propeller.
The propeller first grazed his forehead and, as he threw up his arm, it was caught by the revolving blades thereof and so
injured that it had be amputated.
Bohn and Garrett of Warner, Barnes & Co., consignees of the defendant in Iloilo, were on the beach to meet the plane
and to make arrangements for the disembarking of the passengers. Upon seeing the plaintiff walking toward the
propeller, they shouted frantically and motioned to him to keep away from it, but the said plaintiff took no heed of
them.
The usual procedure in discharging passengers from a hydroplane is to wait until the propeller stops, then turn the plane
around by hand so as to have the rear or tail and thereof towards the beach, and then take the passengers to shore in
a banca. The pilot in charge of the plane has had fourteen years experience, having first learned to fly during the World
War. He is duly licensed by the Department of Commerce of the United States and by the Department of Commerce and
Communications of the Government of the Philippine Islands.
The only question to decide in this appeal, which is raised in the first assignment of error, is whether or not the
defendant entity has complied with its contractual obligation to carry the plaintiff-appellant Teh Le Kim safe and sound
to his destination.
The contract entered into by the plaintiff Teh Le Kim and the defendant entity Philippine Aerial Taxi Co., Inc., was that
upon payment of the price of the passage, which the carrier had received, the latter would carry the former by air in one
of its hydroplanes and put him, safe and sound, on the beach at Iloilo. After an uneventful flight, the hydroplane, which
carried the plaintiff and his companion, arrived at the Iloilo beach, as usual, with nothing more left to do but to take the
plaintiff and his companion, safe and sound, ashore. In order to do this, it was necessary to wait for the propeller to
stop, turn the rear or tail end of the plane towards the shore, take the passengers out by the aforesaid rear or tail end
thereof, place them in a banca and take them ashore. By sheer common sense, the plaintiff ought to know that a
propeller, be it that of a ship or of an aeroplane, is dangerous while in motion and that to approach it is to run the risk of
being caught and injured thereby. He ought to know furthermore that inasmuch as the plane was on the water, he had
to wait for a banca to take him ashore. Notwithstanding the shouts and warning signals given him from the shore by the
representatives of the consignee firm, the plaintiff herein, not being a man of ordinary prudence, hastily left the cabin of
the plane, walked along one of the pontoons and directly into the revolving propeller, while the banca which was to take
him ashore was still some distance away and the pilot was instructing the boatman to keep it at a safe distance from the
plane. Under such circumstances, it is not difficult to understand that the plaintiff-appellant acted with reckless
negligence in approaching the propeller while it was still in motion, and when the banca was not yet in a position to take
him. That the plaintiff-appellant's negligence alone was the direct cause of the accident, is so clear that it is not
necessary to cite authoritative opinions to support the conclusion that the injury to his right arm and the subsequent
amputation thereof were due entirely and exclusively to his own imprudence and not to the slightest negligence
attributable to the defendant entity or to its agents. Therefore, he alone should suffer the consequences of his act.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the costs against the
appellant. So ordered.
G.R. No. L-72964 January 7, 1988
FILOMENO URBANO, Petitioner,
vs
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, Respondents.
SYLLABUS
1. CRIMINAL LAW; CRIMINAL LIABILITY; LIABILITY OF ACCUSED FOR NATURAL CONSEQUENCES RESULTING FROM CRIME.
— Article 4 of the Revised Penal Code which provides that "Criminal liability shall be incurred: (1) By any person
committing a felony (delito) although the wrongful act done be different from that which he intended . . ." Pursuant to
this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the natural
and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631)
2. ID.; ID.; ID.; ACCUSED IN CASE AT BAR NOT LIABLE FOR SUBSEQUENT DEATH OF HACKING VICTIM DUE TO TETANUS
NOT PRESENT AT TIME OF INFLICTION OF WOUND. — In the case at bar, Javier suffered a 2-inch incised wound on his
right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980.
After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died. If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable that Javier should have been infected with only a
mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more
than 14 days after the infliction of the wound. Therefore, the onset time should have seen more than six days. Javier,
however, died on the second day from the onset time. The more credible conclusion is that at the time Javier’s wound
was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier’s
wound could have been infected with tetanus after the hacking incident. Considering the circumstance surrounding
Javier’s death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.
3. ID.; ID.; ID.; CONVICTION TO HOMICIDE REQUIRES PROOF BEYOND REASONABLE DOUBT THAT WOUND WAS
PROXIMATE CAUSE OF DEATH. — The rule is that the death of the victim must be the direct, natural, and logical
consequence of the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing
with a criminal conviction, the proof that the accused caused the victim’s death must convince a rational mind beyond
reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by
tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The
infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038). Doubts are present. There is a
likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary
precautions, with tetanus may have been the proximate cause of Javier’s death with which the petitioner had nothing to
do.
4. CRIMINAL PROCEDURE; SETTLEMENT OF MINOR OFFENSES ALLOWED UNDER P.D. 1508. — It strains the judicial mind
to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is guilty of inflicting
slight physical injuries. However, the petitioner’s criminal liability in this respect was wiped out by the victim’s own act.
After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise
agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor
offenses is allowed under the express provisions of Presidential Decree No. 1508, Section 2(3). (See also People v.
Caruncho, 127 SCRA 16).
5. ID.; CIVIL LIABILITY; JUDGMENT OF ACQUITTAL DOES NOT NECESSARILY EXTINGUISH CIVIL LIABILITY. — It does not
necessarily follow that the petitioner is also free of civil liability. The well-settled doctrine is that a person, while not
criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, Et. Al. (G.R. No.
74041, July 29, 1987), we said: . . .." . . While the guilt of the accused in a criminal prosecution must be established
beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil
Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the
facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559)
DECISION
This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then
Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of
homicide.
The records disclose the following facts of the case.
At about 8:00 o’clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay
Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He found
the place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed.
Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe
cutting grass. He asked them who was responsible for the opening of the irrigation canal and Javier admitted that he was
the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued.
Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on
the right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away from
Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of said
bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced and
prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away
from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding
him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with
Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought
to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier
but instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a
medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which
reads:
"TO WHOM IT MAY CONCERN:
"This is to certify that I have examined the would of Marcelo Javier, 20 years of age, married, residing at Barangay
Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following:
"1-Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.
"As to my observation the incapacitation is from (7-9) days period. This would was presented to me only for medico-
legal examination, as it was already treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay
P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before
the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter
(Exhibit "A"), to wit:
x x x
"Entry Nr 599/27 Oct ‘80/1030H/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied
by brgy councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other.
Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical
treatment, and promising to him and to this Office that this will never be repeated anymore and not to harbour any
grudge against each other." (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to
Javier at Urbano’s house in the presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious
condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who
personally attended to Javier found that the latter’s serious condition was caused by tetanus toxin. He noticed the
presence of a hearing wound in Javier’s palm which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as
follows:
"Date Diagnosis 11-14-80 ADMITTED due to trismusadm. at DX: TETANUS 1:30 AM Still having frequent muscle spasm.
With difficulty opening his mouth. #35, 421 Restless at times. Febrile 11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden
cessation of respiration and HR after muscular spasm. O2 inhalation administered. Ambo bag resuscitation and cardiac
massage done but to no avail. Pronounced dead by Dra. Cabugao at 4:18 P.M. PMC done and cadaver brought home by
relatives." (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit
Criminal Court of Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was
sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to
SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the
accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison,
in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity
to the heirs of the deceased to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of
Barangay Captain Menardo Soliven (Annex "A") which states:
"That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been re-
elected to such position in the last barangay elections on May 17, 1982;
"That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of
Central Luzon including San Fabian, a town of said province;
"That during the typhoon, the sluice or control gates of the Bued-irrigation dam which irrigates the ricefields of San
Fabian were closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and
reduced;
"That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water
to the ricefields, the water in said canals and ditches become shallow which was suitable for catching mudfishes;
"That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata;
"That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow
irrigation canals with some companions;
"That few days thereafter, or on November 15, 1980, I came to know that said Marcelo Javier died of tetanus." (p. 33,
Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall be
incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he
intended . . ." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of
law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631)
The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered
a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier
was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died from
tetanus.
Under these circumstances, the lower courts ruled that Javier’s death was the natural and logical consequence of
Urbano’s unlawful act. Hence, he was declared responsible for Javier’s death. Thus, the appellate court said:
"The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to
the time of his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased
did not die right away from his wound, but the cause of his death was due to said wound which was inflicted by the
appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death.
"Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the
infection of the wound with tetanus. And there is no other way by which he could be infected with tetanus except
through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim’s death was
the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the
consequences of his unlawful act. (Article 4, par. 1, R.P.C.; People v. Red, CA 43 O.G. 5072; People v. Cornel, 78 Phil. 418)
"Appellant’s allegation that the proximate cause of the victim’s death was due to his own negligence in going back to
work without his wound being properly healed, and lately, that he went to catch fish in dirty irrigation canals in the first
week of November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he
found himself in. If the wound had not yet healed, it is impossible to conceive that the deceased would be reckless
enough to work with a disabled hand." (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own
negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after
two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful
elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time
of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time
Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound
was infected is not clear from the record.
In Vda. de Bataclan, Et. Al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause:
x x x
". . . A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:
". . .’that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.’ And more comprehensively, ‘the proximate legal cause is
that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a
event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was
wounded until his death which would exculpate Urbano from any liability for Javier’s death.
We look into the nature of tetanus —
"The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges
from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period
indicates severe disease, and when symptoms occur within 2 or 3 days of injury, the mortality rate approaches 100
percent.
"Nonspecific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but
the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As
the disease progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In
fact, trismus in the commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw.
As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The
intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and
symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree,
and the signs and symptoms encountered depend upon the major muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptoms, on interval referred to as the onset time. As in
the case of the incubation period, a short onset time is associated with a poor prognosis. Spasms are caused by sudden
intensification of afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive
contraction of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease progresses,
minimal or inapparent stimuli produce more intense and longer-lasting spasms with increasing frequency. Respiration
may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation.
Hypoxia may then lead to irreversible central nervous system damage and death.
Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus
is usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a
somewhat shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present,
but ventilation remains adequate even during spasms. The criteria for severe tetanus include a short incubation time,
and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison’s Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man’s body depends on the incubation period of
the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used
in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the
symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more
medically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of
tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound.
Therefore, the onset time should have seen more than six days. Javier, however, died on the second day from the onset
time. The more credible conclusion is that at the time Javier’s wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier’s wound could have been infected with tetanus after
the hacking incident. Considering the circumstance surrounding Javier’s death, his wound could have been infected by
tetanus 2 or 3 or a few but not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon
him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the
accused caused the victim’s death must convince a rational mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause
later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign
to the crime. (People v. Rellin, 77 Phil. 1038)
Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for
failure to take necessary precautions, with tetanus may have been the proximate cause of Javier’s death with which the
petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, Et. Al. (99 Phil. 118)
"‘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. 931-932)." (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records
show he is guilty of inflicting slight physical injuries. However, the petitioner’s criminal liability in this respect was wiped
out by the victim’s own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to
effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier.
This settlement of minor offenses is allowed under the express provisions of Presidential Decree No. 1508, Section 2(3).
(See also People v. Caruncho, 127 SCRA 16)
We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of
this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled
doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case of People v.
Rogelio Ligon y Tria, Et. Al. (G.R. No. 74041, July 29, 1987), we said:
x x x
". . . While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a
preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal
extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability
might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559)
"The reason for the provisions of Article 29 of the Civil Code, which provides that the acquittal of the accused on the
ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability
for the same act or omission, has been explained by the Code Commission as follows:
"The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most
serious flaws in the Philippine legal system. It has given rise to numberless instances of miscarriage of justice, where the
acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is
that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability
cannot be demanded.
"‘This is one of those causes where confused thinking leads to unfortunate and deplorable consequences. Such
reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine
the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social
order and the other, private rights. One is for the punishment or correction of the offender while the other is for
reparation of damages suffered by the aggrieved party. The two responsibilities are so different from each other that
article 1813 of the present (Spanish) Civil Code reads thus: ‘There may be a compromise upon the civil action arising
from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished.’ It is just and
proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond
reasonable doubt. But for the purpose of indemnifying the complaining party, why should the offense also be proved
beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of
evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the
criminal law?
"‘For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious
defect in our law. It will close up an inexhaustible source of injustice — a cause for disillusionment on the part of the
innumerable persons injured or wronged.’"
The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However,
since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the civil
liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the heirs of
the victim are so minded.
WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate
Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs
de oficio.
SO ORDERED.
G.R. No. 190022 February 15, 2012
PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and BEN SAGA, Petitioners,

vs.
PURIFICACION VIZCARA, MARIVIC VIZCARA, CRESENCIA A. NATIVIDAD, HECTOR VIZCARA, JOEL VIZCARA and
DOMINADOR ANTONIO, Respondents.
Nature of the Petition
Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, seeking to
annul and set aside the Decision1 dated July 21, 2009 of the Court of Appeals (CA) in CA-G.R. CV No. 90021, which
affirmed with modification the Decision 2 dated March 20, 2007 of the Regional Trial Court (RTC), Branch 40, Palayan City,
and Resolution3 dated October 26, 2009, which denied the petitioners’ motion for reconsideration.
The Antecedent Facts
On May 14, 2004, at about three o’clock in the morning, Reynaldo Vizcara (Reynaldo) was driving a passenger jeepney
headed towards Bicol to deliver onion crops, with his companions, namely, Cresencio Vizcara (Cresencio), Crispin
Natividad (Crispin), Samuel Natividad (Samuel), Dominador Antonio (Dominador) and Joel Vizcara (Joel). While crossing
the railroad track in Tiaong, Quezon, a Philippine National Railways (PNR) train, then being operated by respondent
Japhet Estranas (Estranas), suddenly turned up and rammed the passenger jeepney. The collision resulted to the
instantaneous death of Reynaldo, Cresencio, Crispin, and Samuel. On the other hand, Dominador and Joel, sustained
serious physical injuries.4
At the time of the accident, there was no level crossing installed at the railroad crossing. Additionally, the "Stop, Look
and Listen" signage was poorly maintained. The "Stop" signage was already faded while the "Listen" signage was partly
blocked by another signboard.5
On September 15, 2004, the survivors of the mishap, Joel and Dominador, together with the heirs of the deceased
victims, namely, Purificacion Vizcara, Marivic Vizcara, Cresencia Natividad and Hector Vizcara, filed an action for
damages against PNR, Estranas and Ben Saga, the alternate driver of the train, before the RTC of Palayan City. The case
was raffled to Branch 40 and was docketed as Civil Case No. 0365-P. In their complaint, the respondents alleged that the
proximate cause of the fatalities and serious physical injuries sustained by the victims of the accident was the
petitioners’ gross negligence in not providing adequate safety measures to prevent injury to persons and properties.
They pointed out that in the railroad track of Tiaong, Quezon where the accident happened, there was no level crossing
bar, lighting equipment or bell installed to warn motorists of the existence of the track and of the approaching train.
They concluded their complaint with a prayer for actual, moral and compensatory damages, as well as attorney’s fees. 6
For their part, the petitioners claimed that they exercised due diligence in operating the train and monitoring its
roadworthiness. They asseverate that right before the collision, Estranas was driving the train at a moderate speed. Four
hundred (400) meters away from the railroad crossing, he started blowing his horn to warn motorists of the approaching
train. When the train was only fifty (50) meters away from the intersection, respondent Estranas noticed that all vehicles
on both sides of the track were already at a full stop. Thus, he carefully proceeded at a speed of twenty-five (25)
kilometers per hour, still blowing the train’s horn. However, when the train was already ten (10) meters away from the
intersection, the passenger jeepney being driven by Reynaldo suddenly crossed the tracks. Estranas immediately
stepped on the brakes to avoid hitting the jeepney but due to the sheer weight of the train, it did not instantly come to a
complete stop until the jeepney was dragged 20 to 30 meters away from the point of collision. 7
The Ruling of the Trial Court
After trial on the merits, the RTC rendered its Decision 8 dated March 20, 2007, ruling in favor of the respondents, the
dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered ordering defendants Philippine National Railways
Corporation (PNR), Japhet Estranas and Ben Saga to, jointly and severally pay the following amounts to:
1. a) PURIFICACION VIZCARA:
1) P50,000.00, as indemnity for the death of Reynaldo Vizcara;
2) P35,000.00, for funeral expenses;

3) P5,000.00 for re-embalming expenses;
4) P40,000.00 for wake/interment expenses;
5) P300,000.00 as reimbursement for the value of the jeepney with license plate no. DTW-387;
6) P200,000.00 as moral damages;
7) P100,000.00 as exemplary damages; and
8) P20,000.00 for Attorney’s fees.
b) MARIVIC VIZCARA:
1) P50,000.00, as indemnity for the death of Cresencio Vizcara;
c) HECTOR VIZCARA:
1) P50,000.00 as indemnity for the death of Samuel Vizcara;
d) CRESENCIA NATIVIDAD:
1) P50,000.00 as indemnity for the death of Crispin Natividad;
e) JOEL VIZCARA
1) P9,870.00 as reimbursement for his actual expenses;
f) DOMINADOR ANTONIO
1) P63,427.00 as reimbursement for his actual expenses;

and
2. Costs of suit.
SO ORDERED.9
The Ruling of the CA
Unyielding, the petitioners appealed the RTC decision to the CA. Subsequently, on July 21, 2009, the CA rendered the
assailed decision, affirming the RTC decision with modification with respect to the amount of damages awarded to the
respondents. The CA disposed, thus:
WHEREFORE, instant appeal is PARTIALLY GRANTED. The assailed Decision is AFFIRMED WITH MODIFICATION, as
follows:
(1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for wake/interment expenses to
PURIFICACION VIZCARA is deleted. In lieu thereof, P25,000.00 as temperate damages is awarded;
(2) The award of moral damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA and
CRESENCIA NATIVIDAD is hereby reduced from P200,000.00 to P100,000.00 each while moral damages awarded
to JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from P50,000.00 to P25,000.00;
(3) The award of exemplary damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA and
CRESENCIA NATIVIDAD is hereby reduced from P100,000.00 to P50,000.00 each while exemplary damages
awarded to JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from P25,000.00 to P12,500.00; and
(4) The award for attorney’s fees in favor of the Appellees as well as the award of P300,000.00 to Appellee
PURIFICACION as reimbursement for the value of the jeepney is DELETED.
SO ORDERED.10
In the assailed decision, the CA affirmed the RTC’s finding of negligence on the part of the petitioners. It concurred with
the trial court's conclusion that petitioner PNR's failure to install sufficient safety devices in the area, such as flagbars or
safety railroad bars and signage, was the proximate cause of the accident. Nonetheless, in order to conform with
established jurisprudence, it modified the monetary awards to the victims and the heirs of those who perished due to
the collision.
The petitioners filed a Motion for Reconsideration 11 of the decision of the CA. However, in a Resolution 12 dated October
26, 2009, the CA denied the same.
Aggrieved, the petitioners filed the present petition for review on certiorari, raising the following grounds:
THE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF THE
PETITIONERS;
II
THE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST CLEAR CHANCE FINDS NO APPLICATION IN THE
INSTANT CASE;
III
THE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF THE PETITIONERS OR ERRED IN NOT FINDING AT THE
LEAST, CONTRIBUTORY NEGLIGENCE ON THE PART OF THE RESPONDENTS. 13
The petitioners maintain that the proximate cause of the collision was the negligence and recklessness of the driver of
the jeepney. They argue that as a professional driver, Reynaldo is presumed to be familiar with traffic rules and
regulations, including the right of way accorded to trains at railroad crossing and the precautionary measures to observe
in traversing the same. However, in utter disregard of the right of way enjoyed by PNR trains, he failed to bring his
jeepney to a full stop before crossing the railroad track and thoughtlessly followed the ten-wheeler truck ahead of them.
His failure to maintain a safe distance between the jeepney he was driving and the truck ahead of the same prevented
him from seeing the PNR signage displayed along the crossing. 14
In their Comment,15 the respondents reiterate the findings of the RTC and the CA that the petitioners' negligence in
maintaining adequate and necessary public safety devices in the area of the accident was the proximate cause of the
mishap. They asseverate that if there was only a level crossing bar, warning light or sound, or flagman in the
intersection, the accident would not have happened. Thus, there is no other party to blame but the petitioners for their
failure to ensure that adequate warning devices are installed along the railroad crossing. 16
This Court’s Ruling
The petition lacks merit.
The petitioners’ negligence was the proximate cause of the accident.
Article 2176 of the New Civil Code prescribes a civil liability for damages caused by a person's act or omission
constituting fault or negligence. It states:
Article 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 was no pre-existing contractual relation between the parties, is
called quasi-delict and is governed by the provisions of this chapter.
In Layugan v. Intermediate Appellate Court, 17 negligence was defined as the omission to do something which a
reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not do. It is 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. 18 To determine the existence of negligence, the time-honored test was: 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. 19
In the instant petition, this Court is called upon to determine whose negligence occasioned the ill-fated incident. The
records however reveal that this issue had been rigorously discussed by both the RTC and the CA. To emphasize, the RTC
ruled that it was the petitioners’ failure to install adequate safety devices at the railroad crossing which proximately
caused the collision. This finding was affirmed by the CA in its July 21, 2009 Decision. It is a well-established rule that
factual findings by the CA are conclusive on the parties and are not reviewable by this Court. They are entitled to great
weight and respect, even finality, especially when, as in this case, the CA affirmed the factual findings arrived at by the
trial court.20
Furthermore, in petitions for review on certiorari, only questions of law may be put into issue. Questions of fact cannot
be entertained.21 To distinguish one from the other, a question of law exists when the doubt or difference centers on
what the law is on a certain state of facts. A question of fact, on the other hand, exists if the doubt centers on the truth
or falsity of the alleged facts.22 Certainly, the finding of negligence by the RTC, which was affirmed by the CA, is a
question of fact which this Court cannot pass upon as this would entail going into the factual matters on which the
negligence was based.23 Moreover, it was not shown that the present case falls under any of the recognized
exceptions24 to the oft repeated principle according great weight and respect to the factual findings of the trial court and
the CA.
At any rate, the records bear out that the factual circumstances of the case were meticulously scrutinized by both the
RTC and the CA before arriving at the same finding of negligence on the part of the petitioners, and we found no
compelling reason to disturb the same. Both courts ruled that the petitioners fell short of the diligence expected of it,
taking into consideration the nature of its business, to forestall any untoward incident. In particular, the petitioners
failed to install safety railroad bars to prevent motorists from crossing the tracks in order to give way to an approaching
train. Aside from the absence of a crossing bar, the "Stop, Look and Listen" signage installed in the area was poorly
maintained, hence, inadequate to alert the public of the impending danger. A reliable signaling device in good condition,
not just a dilapidated "Stop, Look and Listen" signage, 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.25 Having established the fact of negligence on the part of the petitioners, they were rightfully
held liable for damages.
There was no contributory negligence on the part of the respondents.
As to whether there was contributory negligence on the part of the respondents, this court rule in the negative.
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 which he is required to conform for his own protection. It is an 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. 26 Here, we cannot see how the respondents could have contributed to their injury
when they were not even aware of the forthcoming danger. It was established during the trial that the jeepney carrying
the respondents was following a ten-wheeler truck which was only about three to five meters ahead. When the truck
proceeded to traverse the railroad track, Reynaldo, the driver of the jeepney, simply followed through. He did so under
the impression that it was safe to proceed. It bears noting that the prevailing circumstances immediately before the
collision did not manifest even the slightest indication of an imminent harm. To begin with, the truck they were trailing
was able to safely cross the track. Likewise, there was no crossing bar to prevent them from proceeding or, at least, a
stoplight or signage to forewarn them of the approaching peril. Thus, relying on his faculties of sight and hearing,
Reynaldo had no reason to anticipate the impending danger. 27 He proceeded to cross the track and, all of a sudden, his
jeepney was rammed by the train being operated by the petitioners. Even then, the circumstances before the collision
negate the imputation of contributory negligence on the part of the respondents. What clearly appears is that the
accident would not have happened had the petitioners installed reliable and adequate safety devices along the crossing
to ensure the safety of all those who may utilize the same.
At this age of modern transportation, it behooves the PNR to exert serious efforts to catch up with the trend, including
the contemporary standards in railroad safety. As an institution established to alleviate public transportation, it is the
duty of the PNR to promote the safety and security of the general riding public and provide for their convenience, which
to a considerable degree may be accomplished by the installation of precautionary warning devices. Every railroad
crossing must be installed with barriers on each side of the track to block the full width of the road until after the train
runs past the crossing. To even draw closer attention, the railroad crossing may be equipped with a device which rings a
bell or turns on a signal light to signify the danger or risk of crossing. It is similarly beneficial to mount advance warning
signs at the railroad crossing, such as a reflectorized crossbuck sign to inform motorists of the existence of the track, and
a stop, look and listen signage to prompt the public to take caution. These warning signs must be erected in a place
where they will have ample lighting and unobstructed visibility both day and night. If only these safety devices were
installed at the Tiaong railroad crossing and the accident nevertheless occurred, we could have reached a different
disposition in the extent of the petitioner’s liability.
The exacting nature of the responsibility of railroad companies to secure public safety by the installation of warning
devices was emphasized in Philippine National Railways v. Court of Appeals, 28 thus:
[I]t 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. 29
The responsibility of the PNR to secure public safety does not end with the installation of safety equipment and signages
but, with equal measure of accountability, with the upkeep and repair of the same. Thus, in Cusi v. Philippine National
Railways,30 we held:
Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling public has the right to
rely on such warning devices to put them on their guard and take the necessary precautions before crossing the tracks.
A need, therefore, exists for the railroad company to use reasonable care to keep such devices in good condition and in
working order, or to give notice that they are not operating, since if such a signal is misunderstood it is a menace. Thus,
it has been held that if a railroad company maintains a signalling device at a crossing to give warning of the approach of
a train, the failure of the device to operate is generally held to be evidence of negligence, which maybe considered with
all the circumstances of the case in determining whether the railroad company was negligent as a matter of fact. 31
The maintenance of safety equipment and warning signals at railroad crossings is equally important as their installation
since poorly maintained safety warning devices court as much danger as when none was installed at all. The presence of
safety warning signals at railroad crossing carries with it the presumption that they are in good working condition and
that the public may depend on them for assistance. If they happen to be neglected and inoperative, the public may be
misled into relying on the impression of safety they normally convey and eventually bring injury to themselves in doing
so.
The doctrine of last clear chance is not applicable.
Finally, the CA correctly ruled that the doctrine of last clear chance is not applicable in the instant case. The doctrine of
last clear chance provides that where both parties are negligent but the negligent act of one is appreciably later in point
of time than that of the other, or where it is impossible to determine whose fault or negligence brought about the
occurrence of the incident, the one who had the last clear opportunity to avoid the impending harm but failed to do so,
is chargeable with the consequences arising therefrom. Stated differently, the rule is that the antecedent negligence of a
person does not preclude recovery of damages caused by the supervening negligence of the latter, who had the last fair
chance to prevent the impending harm by the exercise of due diligence. 32 To reiterate, the proximate cause of the
collision was the petitioners’ negligence in ensuring that motorists and pedestrians alike may safely cross the railroad
track. The unsuspecting driver and passengers of the jeepney did not have any participation in the occurrence of the
unfortunate incident which befell them. Likewise, they did not exhibit any overt act manifesting disregard for their own
safety. Thus, absent preceding negligence on the part of the respondents, the doctrine of last clear chance cannot be
applied.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals dated July 21, 2009 in
CA-G.R. CV No. 90021 is hereby AFFIRMED.
SO ORDERED.
G.R. No. 206184 December 06, 2017
SPOUSES ED DANTE LATONIO AND MARY ANN LATONIO AND THE MINOR ED CHRISTIAN LATONIO, Petitioners,
vs
MCGEORGE FOOD INDUSTRIES INC., CEBU GOLDEN FOODS INDUSTRIES, INC., AND TYKE PHILIP
LOMIBAO, Respondents.
DECISION
Before this Court is a petition for review 1 via Rule 45 of the Rules of Court assailing the Decision 2 dated September 28,
2012 and Resolution3 dated January 31, 2013 of the Court of Appeals (CA), Cebu City in CA-G.R. CV No. 03079, which
reversed and set aside the Decision4 of the Regional Trial Court (RTC) Branch 22, Cebu City and denied the motion for
reconsideration, respectively.
The facts are as follows:
On September 17, 2000, the petitioners, spouses Ed Dante (Ed) and Mary Ann Latonio (Mary Ann): accompanied their
eight-month-old child Ed Christian to a birthday party at the McDonald's Restaurant, Ayala Center, Cebu City.
During the party and as part of the birthday package, McDonald's presented two mascots- "Birdie" and "Grimace" to
entertain and dance for the guests. Respondent Tyke Philip Lomibao (Lomibao) 5 was the person inside the "Birdie"
mascot suit.
After the mascots danced, guests had their pictures taken with them. Intending to have her child's photo taken with the
mascots, Mary Ann placed Ed Christian on a chair in front of the mascot "Birdie." The mascot positioned itself behind the
child and extended its "wings" to give a good pose for the camera.
As photos were about to be taken, Mary Ann released her hold of Ed Christian. Seconds later, the child fell head first
from the chair onto the floor.
Several guests attended to Ed Christian. Meanwhile, the employees of respondent McDonald's Cebu Golden Food 6 (Cebu
Golden Food) assisted petitioners in giving first aid treatment to Ed Christian. Petitioners, nevertheless, remained and
continued with the party and left only after the party was over.
At about 9:30 in the evening of the same day, Mary Ann called up Cebu Golden Food to inform them that their doctor
advised them to get an x-ray examination on Ed Christian. Cebu Golden Food then assured her that they were willing to
shoulder the expenses for the x-ray examination of Ed Christian. Later, McDonald's reimbursed Mary Ann for the
expenses incurred relative to the x-ray examination. It further offered to pay the expenses for the CT scan to be
conducted on Ed Christian.
For some time, nothing was heard from petitioners. Nonetheless, a staff of Cebu Golden Food visited the Latonios in
their residence to follow up the results of the CT scan test. The staff was met by the brother of Mary Ann, who allegedly
repeatedly shouted at them saying that they would file a case against Cebu Golden Food. Thus, Cebu Golden Food
reported the incident to their licensor, McGeorge Food Industries, Inc.
Sometime in October 2000, McGeorge received a Letter from the lawyer of the Latonios regarding the September 17,
2000 incident. In its reply, McGeorge immediately assured the Latonios that the health and safety of all McDonald's
customers is its utmost concern and that the best medical and hospital care would be made available to Ed Christian.
McGeorge also sent its Field Service Director, together with its lawyer, to meet with the Latonios and their lawyers to
assure them that McDonald's was ready to assist in whatever medical attention would be required of Ed Christian.
During the meeting, McGeorge agreed to contact a neurologist for consultation to ensure Ed Christian's health.
McGeorge conferred and consulted with two neurosurgeons at the St. Luke's Medical Center and the Makati Medical
Center, who both recommended to first study the x-ray results and CT scan to determine the extent of the injury
sustained by the baby.
Thereafter, McGeorge relayed the doctor's requirement to the Latonios who initially agreed to give McGeorge copies of
the x-ray and CT scan results. However, the Latonios had a change of heart and informed McGeorge that they had
decided against lending them the x-ray and CT scan results and other related medical records.
Instead, the Latonios sent a Letter to McGeorge demanding for compensation in the amount of Fifteen Million Pesos
(P15,000,000.00).
As their demand remained unheeded, the Latonios caused the publication of the accident in the local newspaper, Sun
Star Cebu on February 8, 2001 with a headline "Food outlet sued for P9 M damages". Simultaneously, the Latonios also
instituted a complaint for damages and attorney's fees against McGeorge.
On March 3, 2009, the RTC, in Civil Case No. CEB-26126, issued a Decision, 7 the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs and against defendants Tyke
Philip Lomibao and Cebu Golden Foods, Inc., finding defendant Tyke Philip Lomibao liable for acts of negligence causing
the fall of baby Ed Christian Latonia and correspondingly, finding defendant Cebu Golden Foods, Inc. liable solidarity
with defendant Tyke Philip Lomibao, pursuant to Article 2180 of the New Civil Code inasmuch as defendant Cebu Golden
Foods, Inc. was the employer of defendant Tyke Philip Lomibao.
Accordingly, defendants Tyke Philip Lomibao and Cebu Golden Foods, Incorporated, are hereby ordered to pay to the
plaintiffs the following:
1. P900,000.00 as Moral Damages;

2. P50,000.00 as Exemplary Damages, and
3. P300,000.00 as Attorney's fees.
The case against defendant McGeorge Food Industries Inc., is hereby dismissed for lack of evidence.
SO ORDERED.
Aggrieved, Cebu Golden Food and Lomibao filed an appeal before the Court of Appeals-Cebu City.
On September 28, 2012, in its assailed Decision, the Court of Appeals reversed the trial court's decision and said that the
trial court overlooked substantial facts and circumstances which, if properly considered, would justify a different
conclusion and alter the results of the case. The dispositive portion of the decision reads, thus:
WHEREFORE, the appeal is GRANTED. The Decision dated 03 March 2009 of the Regional Trial Court, Branch 22, Cebu
City is REVERSED and SET ASIDE. Civil Case No. CEB-26126 is DISMISSED for lack of merit. The compulsory counterclaims
of defendants-appellants are DENIED. No costs.
SO ORDERED.8
Thus, the instant petition for review under Rule 45 of the Rules of Court brought before this Court raising the sole issue
of: Whether the Court of Appeals erred in ruling that the proximate cause of Ed Christian's fall was the negligence of
petitioner Mary Ann Latonia.9
The trial court held Cebu Golden Food is liable because the proximate cause of Ed Christian's fall is the negligence of
their employee, Lomibao. On the other hand, the Court of Appeals reversed the trial court's decision and held that Ed
Christian's mother, Mary Ann, is liable because the proximate cause of the child's fall was Mary Ann's act of leaving her
eight-month-old child, Ed Christian, in the "hands" of Lomibao who was at the time wearing the Birdie mascot costume.
We find no merit on this instant petition.
The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under Rule 45
of the Rules of Court, only questions of law may be raised. The resolution of factual issues is the function of the lower
courts whose findings on these matters are received with respect and are, as a rule, binding on this Court. 10
However, this rule is subject to certain exceptions. One of these is when the findings of the appellate court are contrary
to those of the trial court.11 It is also settled that the appellate courts will not as a general rule disturb the findings of the
trial court, which is in a better position to determine the same. The trial court has the distinct advantage of actually
hearing the testimony of and observing the deportment of the witnesses. Nevertheless, the rule admits of exceptions
such as when its evaluation was reached arbitrarily, or it overlooked or failed to appreciate some facts or circumstances
of weight and substance which could affect the result of the case, 12 as what happened in the instant case.
In the instant case, there is no dispute that petitioners suffered damages because of Ed Christian's fall. However, as to
the issues on negligence and proximate cause, the Court of Appeals and the trial court gave contradicting findings.
As the action is predicated on negligence, the relevant law is Article 2176 of the 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.
The trial court held that the proximate cause of Ed Christian's fall and the resulting injury was Lomibao's act of holding
the baby during the party which was purportedly prohibited under the rules and policy of the establishment.
We disagree.
Indeed, the testimony of Mary Ann herself on cross-examination is telling. Thus:
xxxx
Q. And when you said that you informed the mascot, what exact words did you use?
A. I tap (sic) him on his side and then I called him that I am going to have the taking of pictures with my baby.
xxxx
Q. Now did you wait for the mascots to make a reply?

A. He was looking at me and he look (sic) at my face.
Q. Did he make a reply?

A. No, Ma'am.
Q. Did you see his eyes looking at you?

A. No, Ma'am.
x x x.13
ATTY. ABELLA
xxxx
Q. And at the time you already observed that the person was wearing a thick leather suit?
A. Yes.
Q. Did you actually see the body of the person who lift (sic) your baby then?
A. No.
Q. Did you see the hands inside the costume?

A. Of course, I cannot see the hands.
Q. Did you see the arms of the person inside the mascot?
A. I cannot because he is (sic) wearing a costume.14
COURT
Q. You were not sure that when you handed the baby it was firmly held by the mascot?
A. I placed the baby in front of the mascot.
Q. You were not aware about the hands when you turned over the baby because it was a mascot?
A. I was sure because I can feel the hands and my baby was standing in front of him; and he is doing like this (witness
demonstrating).15
ATTY. ABELLA
Q. Did you see the eyes of the person inside the mascot costume?
A. No.
Q. Were you aware if there were openings for the eyes of the person inside the mascot?
A. Yes, I was aware.
Q. The eyes in this mascot costume actually had no opening?
A. Yes, no opening. 16
COURT
Q. You entrusted the baby even if there was no opening of the eyes?
A. There was an opening of the costume near the mouth. If the mascot cannot see, then how can he play with the kids?
Q. You said that you told the mascot that you were leaving the baby to him?
A. I pat (sic) him.
Q. Did you see the ears of the person inside the mascot?
A. No.
Q. Did you even know if there was an opening for the ears at the person wearing the mascot costume?
A. No, but I was nearer the mascot.
x x x.17
We agree with the appellate court that despite Mary Ann's insistence that she made sure that her baby was safe and
secured before she released her grasp on Ed Christian, her own testimony revealed that she had, in fact, acted
negligently and carelessly, to wit:
Q. Now when you said that you made sure that the mascot was holding your baby, what action did you do to insure
that?
A. When I saw that the mascot was holding my baby so I make (sic) a motion to my husband for the picture taking so I
left beside. I backed off a little bit.
xxxx.
Q. I will not risk my baby if I am not sure that the mascot was not inserting his hands over my baby when I left the scene.
The (sic) I am sure that the baby was already safe in the hands of the mascot.
Q. When you say that you make (sic) sure you just relied on your sight?
A. Yes, ma'am.18
xxxx
Q: Did you check what part of your child's body was in contact in any part of the mascot's body? A: Partly it was here on
the waist of the child until (sic) the armpit.
Q: Now you said that you move (sic) further to the side from where your baby was standing, is that your testimony?
A: Yes, ma'am.
Q: Can you tell us or can you give us any reason why you move (sic) to the side?
A: Because I motioned my husband already that he would take a picture of the baby and the mascot before I left and I
am so sure that the baby is securely (sic) with the mascot holding the baby. 19
xxxx
Q And your child at that time was eight (8) months old?
A Yes, ma'am.
Q: He cannot stand on his own?

A: He can stand but he has to have support.
Q: He cannot walk on his own at that time?

A: At that time with support."
x x x.20
More telling is the ratiocination of the Court of Appeals, which we quote with approval:
Indeed, it is irresponsible for a mother to entrust the safety, even momentarily, of her eight-month-old child to a
mascot, not to mention a bird mascot in thick leather suit that had no arms to hold the child and whose diminished
ability to see, hear, feel, and move freely was readily apparent. Moreover, by merely tapping the mascot and saying
''papicture ta", Mary Ann Latonio cannot be said to have "told, informed and instructed the mascot that she was
letting the mascot hold the baby momentarily." Releasing her grasp of the baby without waiting for any indication that
the mascot heard and understood her is just plain negligence on the part of Mary Ann.
To Our mind, what is more in accord with human experience and dictates of reason is that a diligent mother would
naturally ensure first and foremost the safety of her child before releasing her hold on him. Such is not the case here.
Mary Ann Latonio, in placing Ed Christian on a chair and expecting a bird mascot to ensure the child's safety, utterly
failed to observe the degree of diligence expected of her as a mother of an eight month-old baby.21
Clearly, based on the foregoing, Mary Ann's negligence was the proximate cause of Ed Christian's fall which caused him
injury. Proximate cause is defined as -
that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that
acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural
and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in
the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person might probably result
therefrom.22
Here, it is beyond dispute that the cause of Ed Christian's fall is traceable to the negligent act of Mary Ann of leaving him
in the "hands" of Lomibao who was wearing the Birdie mascot suit. We noted that "hands" and "wings" were used
interchangeably during the testimonies of the witnesses, thus, causing confusion. However, it must be stressed that
while indeed Lomibao has hands of his own, at the time of the incident he was wearing the Birdie mascot suit. Suffice it
to say that the Birdie mascot suit have no hands but instead have wings. Lomibao cannot possibly hold or grasp anything
while wearing the thick Birdie mascot suit. In fact, even if he wanted to hold Ed Christian or anything, he could not
possibly do so because he was wearing the Birdie mascot suit which do not even have hands or fingers to be able to hold
or grasp firmly.
Notably, while the CA and the trial court made conflicting rulings on the negligence of Cebu Golden Food and Lomibao,
they, however, concur on Mary Ann's own negligence. The trial court's summation of Mary Ann's own negligence is as
follows:
xxxx
A review of their testimonies would reveal that although we ascribe negligence of defendant Lomibao we, likewise,
unraveled that plaintiff herself was not entirely blameless. Therefore, plaintiff Mary Ann Latonia was likewise
negligent. Why was she negligent can be traced to the fact as established that she left her eight-month-old baby on
top of a chair to the temporary custody of a mascot. Even if the baby was only left for a few seconds or minutes that
could already spell a disaster, in fact, it really happened. The baby fell from the chair and went straight into the floor
head first. Even if she already informed and told the mascot that she was leaving the baby to his hold she should not
have let go of her grip because as a mother she ought to exercise the commensurate prudence and case.
x x x."23
Thus, all the aforementioned circumstances lead us to no other conclusion than that the proximate cause of the injury
sustained by Ed Christian was due to Mary Ann's own negligence.
All told, in the absence of negligence on the part of respondents Cebu Golden Foods and Lomibao, as well as their
management and staff, they cannot be made liable to pay for the damages prayed for by the petitioners.
To warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant,
and damage resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong, does not constitute
a cause of action, since damages are merely part of the remedy allowed for the injury caused by a breach or wrong. 24
Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or loss to another but
which violate no legal duty to such other person, and consequently create no cause of action in his favour. In such cases,
the consequences must be borne by the injured person alone. The law affords no remedy resulting from an act which
does not amount to a legal injury or wrong. 25
WHEREFORE, premises considered, the Decision dated September 28, 2012 and Resolution dated January 31, 2013 of
the Court of Appeals in CA-G.R. CV No. 03079 are hereby AFFIRMED.
SO ORDERED.
G.R. No. L-40570 January 30, 1976
TEODORO C. UMALI, petitioner,
vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First Instance of Pangasinan and
FIDEL H. SAYNES, respondents.
Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX, in Civil Case No.
U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali, defendant-appellant", which found the
death by electrocution of Manuel Saynes, a boy of 3 years and 8 months, as "due to the fault or negligence of the
defendant (Umali) as owner and manager of the Alcala Electric Plant", although the liability of defendant is mitigated by
the contributory negligence of the parents of the boy "in not providing for the proper and delegate supervision and
control over their son The dispositive part of the decision reads as follows:
Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the defendant to pay
to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the death of his son, Manuel Saynes; the
sum of One Thousand Two Hundred Pesos (P1,200.00) for actual expenses for and in connection with
the burial of said deceased child, and the further sum of Three Thousand Pesos (P3,000.00) for moral
damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a total of Nine Thousand
Seven Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is So Ordered.
Undisputed facts appearing of record are:
On May 14, 1972, a 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.
Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and manager of the Alcala
Electric Plant because the proximate cause of the boy's death electrocution could not be due to any negligence on his
part, but rather to a fortuitous event-the storm that caused the banana plants to fall and cut the electric line-pointing
out the absence of negligence on the part of his employee Cipriano Baldomero who tried to have the line repaired and
the presence of negligence of the parents of the child in allowing him to leave his house during that time.
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.
Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in this case, either in
its appreciation of the evidence on questions of facts or on the interpretation and application of laws government quasi-
delicts and liabilities emanating therefrom. The inevitable conclusion is that no error amounting to grave abuse of
discretion was committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, Petitioners,
vs
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, Respondents.
DECISION
In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of the 17 June
1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati
City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorney’s fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel’s Department Store, Makati City. Petitioners Leonardo
Kong, Jose Tiope and Elisa Panelo are the store’s branch manager, operations manager, and supervisor, respectively.
Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel’s Department Store, Makati City.
CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden gust of wind
and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body
pinned by the bulk of the store’s gift-wrapping counter/structure. ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving
ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her
speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their
toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was
six years old. 4
The cause of her death was attributed to the injuries she sustained. The provisional medical certificate 5 issued by
ZHIENETH’s attending doctor described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral expenses 6 which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119 wherein they sought
the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorney’s fees and an
unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH.
They claimed that CRISELDA was negligent in exercising care and diligence over her daughter by allowing her to freely
roam around in a store filled with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since
she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized that the counter was made
of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a
family in the selection, supervision and control of its employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered that the complaint was malicious for which they suffered
besmirched reputation and mental anguish. They sought the dismissal of the complaint and an award of moral and
exemplary damages and attorney’s fees in their favor.
In its decision 7 the trial court dismissed the complaint and counterclaim after finding that the preponderance of the
evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of
clinging to it. It believed petitioners’ witnesses who testified that ZHIENETH clung to the counter, after which the
structure and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private
respondents’ witnesses testified on how the counter fell. The trial court also held that CRISELDA’s negligence
contributed to ZHIENETH’s accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or corner of
the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance. 8 The counter was
higher than ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH
therefore, had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the proximate
cause of the fall of the counter was ZHIENETH’s misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3)
petitioners were not negligent in the maintenance of the counter; and (4) petitioners were not liable for the death of
ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a child
below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was physically impossible for her to have propped herself on the counter. She
had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she was. Also,
the testimony of one of the store’s former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was
brought to the emergency room of the Makati Medical Center belied petitioners’ theory that ZHIENETH climbed the
counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied," [N]othing, I
did not come near the counter and the counter just fell on me." 9 Accordingly, Gonzales’ testimony on ZHIENETH’s
spontaneous declaration should not only be considered as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the
precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH’s death, was petitioners’
negligence in failing to institute measures to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be
disturbed. They explained that ZHIENETH’s death while unfortunate and tragic, was an accident for which neither
CRISELDA not even ZHIENETH could entirely be held faultless and blameless. Further, petitioners adverted to the trial
court’s rejection of Gonzales’ testimony as unworthy of credence.
As to private respondent’s claim that the counter should have been nailed to the ground, petitioners justified that it was
not necessary. The counter had been in existence for several years without any prior accident and was deliberately
placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence for they had exercised
due diligence on the matter. In fact, the criminal case 10 for homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It found
that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted
"L" 11 with a top wider than the base. It was top heavy and the weight of the upper portion was neither evenly
distributed nor supported by its narrow base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the counter to fall. Two former employees of
petitioners had already previously brought to the attention of the management the danger the counter could cause. But
the latter ignored their concern. The Court of Appeals faulted the petitioners for this omission, and concluded that the
incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It was
inconsequential that the counter had been in use for some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was
absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not be held
liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere mischief
or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and prejudiced.
It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86
as actual damages; the amount representing the hospitalization expenses incurred by private respondents as evidenced
by the hospital’s statement of account. 12 It denied an award for funeral expenses for lack of proof to substantiate the
same. Instead, a compensatory damage of P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered against
[petitioners], ordering them to pay jointly and severally unto [private respondents] the following:
1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest (6% p.a.) from 27
April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney’s fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals’
resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals’ decision and the reinstatement of the judgment of the trial
court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and conclusions of
the trial court. They stress that since the action was based on tort, any finding of negligence on the part of the private
respondents would necessarily negate their claim for damages, where said negligence was the proximate cause of the
injury sustained. The injury in the instant case was the death of ZHIENETH. The proximate cause was ZHIENETH’s act of
clinging to the counter. This act in turn caused the counter to fall on her. This and CRISELDA’s contributory negligence,
through her failure to provide the proper care and attention to her child while inside the store, nullified private
respondents’ claim for damages. It is also for these reasons that parents are made accountable for the damage or injury
inflicted on others by their minor children. Under these circumstances, petitioners could not be held responsible for the
accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from Syvel’s at the time he testified; hence,
his testimony might have been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA was
negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are substantiated by
the evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the
hospital’s emergency room should receive credence; and finally, ZHIENETH’s part of the res gestae declaration "that she
did nothing to cause the heavy structure to fall on her" should be considered as the correct version of the gruesome
events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence; and
(2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a
defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store
premises.
An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. 15 It is "a
fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or
partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom
it happens." 16
On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and
reasonable man would not do. 17 Negligence is "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." 18
Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the
person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. 19
The test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith, 20 thus: Did
the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary prudent person
would have used in the same situation? If not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH’s death could only be attributable
to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA and
ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated?
A At the emergency room we were all surrounding the child. And when the doctor asked the child "what did you do,"
the child said "nothing, I did not come near the counter and the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH’s statement formed (and should be admitted as) part of the res
gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received
as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally
considered declarations and admissions. 23 All that is required for their admissibility as part of the res gestae is that they
be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a
falsehood as witnessed by the person who testified in court. Under the circumstances thus described, it is unthinkable
for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life.
We therefore accord credence to Gonzales’ testimony on the matter, i.e., ZHIENETH performed no act that facilitated
her tragic death. Sadly, petitioners did, through their negligence or omission to secure or make stable the counter’s
base.
Gonzales’ earlier testimony on petitioners’ insistence to keep and maintain the structurally unstable gift-wrapping
counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift wrapping
counter, were you able to examine?
A Because every morning before I start working I used to clean that counter and since it is not nailed and it was only
standing on the floor, it was shaky.
x x x
Q Will you please describe the counter at 5:00 o’clock [sic] in the afternoon on [sic] May 9, 1983?
A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the top of it was
heavy and considering that it was not nailed, it can collapsed at anytime, since the top is heavy.
Q And what did you do?

A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond putting display decorations on
tables, he even told me that I would put some decorations. But since I told him that it not [sic] nailed and it is shaky he
told me "better inform also the company about it." And since the company did not do anything about the counter, so I
also did not do anything about the counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the Honorable Court the counter where you were assigned in January 1983?
x x x
A That counter assigned to me was when my supervisor ordered me to carry that counter to another place. I told him
that the counter needs nailing and it has to be nailed because it might cause injury or accident to another since it was
shaky.
Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you please described
that to the Honorable Court?
A I told her that the counter wrapper [sic] is really good [sic] condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?
A She told me "Why do you have to teach me. You are only my subordinate and you are to teach me? And she even got
angry at me when I told her that.
x x x
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the management do to
that [sic]
Witness: None, sir. They never nailed the counter. They only nailed the counter after the accident happened. 25
[Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the
unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of the store’s
employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as confronted by the
situation petitioners miserably failed to discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the former’s testimonies
were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarra’s testimonies were
blemished by "ill feelings" against petitioners — since they (Gonzales and Guevarra) were already separated from the
Company at the time their testimonies were offered in court — was but mere speculation and deserved scant
consideration.
It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule
disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinct
advantage of actually hearing the testimony of and observing the deportment of the witnesses. 26 However, the rule
admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some
facts or circumstances of weight and substance which could affect the result of the case. 27 In the instant case,
petitioners failed to bring their claim within the exception.
Anent the negligence ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in
that they are incapable of contributory negligence. In his book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is,
on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability
obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with
discernment. Since negligence may be a felony and a quasi-delict and required discernment as a condition of liability,
either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine
but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of
age must be conclusively presumed incapable of contributory negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no injury
should have occurred if we accept petitioners’ theory that the counter was stable and sturdy. For if that was the truth, a
frail six-year old could not have caused the counter to collapse. The physical analysis of the counter by both the trial
court and Court of Appeals and a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not durable after all.
Shaped like an-inverted "L" the counter was heavy, huge, and its top laden with formica. It protruded towards the
customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDA’s waist,
later to the latter’s hand. 31 CRISELDA momentarily released the child’s hand from her clutch when she signed her credit
card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at time
ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping counter
was just four meters away from CRISELDA. 32 The time and distance were both significant. ZHIENETH was near her
mother and did not loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated
her at the hospital that she did not do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of
Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. 169891 November 2, 2006
PHILIPPINE NATIONAL RAILWAYS, Petitioner,

vs.
ETHEL BRUNTY and JUAN MANUEL M. GARCIA, Respondents.
This is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA) in CA-G.R. CV No. 47567 and its
Resolution2 denying the motion for reconsideration thereof. The assailed decision affirmed with partial modification the
ruling3 of the Regional Trial Court (RTC) of Manila, Branch 20, directing petitioner Philippine National Railways (PNR) to
indemnify respondents Ethel Brunty and Juan Manuel M. Garcia for the death of Rhonda Brunty, and to pay actual and
moral damages, attorney’s fees and cost of suit.
Rhonda Brunty, daughter of respondent Ethel Brunty and an American citizen, came to the Philippines for a visit
sometime in January 1980. Prior to her departure, she, together with her Filipino host Juan Manuel M. Garcia, traveled
to Baguio City on board a Mercedes Benz sedan with plate number FU 799, driven by Rodolfo L. Mercelita. It was about
12:00 midnight, January 25, 1980. By then, PNR Train No. T-71, driven by Alfonso Reyes, was on its way to Tutuban,
Metro Manila4 as it had left the La Union station at 11:00 p.m., January 24, 1980.
By 2:00 a.m., Rhonda Brunty, Garcia and Mercelita were already approaching the railroad crossing at Barangay Rizal,
Moncada, Tarlac. Mercelita, driving at approximately 70 km/hr, drove past a vehicle, unaware of the railroad track up
ahead and that they were about to collide with PNR Train No. T-71. Mercelita was instantly killed when the Mercedes
Benz smashed into the train; the two other passengers suffered serious physical injuries. 5 A certain James
Harrow6 brought Rhonda Brunty to the Central Luzon Doctor’s Hospital in Tarlac, where she was pronounced dead after
ten minutes from arrival. Garcia, who had suffered severe head injuries, was brought via ambulance to the same
hospital. He was transferred to the Manila Doctor’s Hospital, and later to the Makati Medical Center for further
treatment.7
On July 28, 1981, Ethel Brunty sent a demand letter 8 to the PNR demanding payment of actual, compensatory, and
moral damages, as a result of her daughter’s death. When PNR did not respond, Ethel Brunty and Garcia, filed a
complaint9 for damages against the PNR before the RTC of Manila. The case was raffled to Branch 20 and was docketed
as Civil Case No. 83-18645. They alleged that the death of Mercelita and Rhonda Brunty, as well as the physical injuries
suffered by Garcia, were the direct and proximate result of the gross and reckless negligence of PNR in not providing the
necessary equipment at the railroad crossing in Barangay Rizal, Municipality of Moncada, Tarlac. They pointed out that
there was no flagbar or red light signal to warn motorists who were about to cross the railroad track, and that the
flagman or switchman was only equipped with a hand flashlight. 10 Plaintiffs likewise averred that PNR failed to supervise
its employees in the performance of their respective tasks and duties, more particularly the pilot and operator of the
train.11 They prayed for the payment of the following damages:
1.) ₱200,000.00 as actual and compensatory damages to plaintiff Ethel Brunty;
2.) ₱2,800,000.00 for compensatory damages to plaintiff Ethel Brunty representing lost or unearned income of
Rhonda Brunty;
3.) Such amounts of moral and exemplary damages as may be warranted by the evidence adduced, to plaintiff
Ethel Brunty;
4.) At least ₱64,057.61 as actual damages representing medical expenses to plaintiff Juan Manuel M. Garcia and
at least ₱1,000,000.00 as unearned or lost income of said plaintiff;
5.) At least ₱72,760.00 as actual damages representing cost of the Mercedes Benz car to plaintiff Juan Manuel
M. Garcia;
6.) Such amounts of moral and exemplary damages as may be warranted by the evidence adduced, to plaintiff
Juan Manuel M. Garcia; and
7.) Attorney’s fees equivalent to at least 15% of the total award to plaintiffs herein. 12
In its Answer,13 PNR claimed that it exercised the diligence of a good father of a family not only in the selection but also
in the supervision of its employees.14 By way of special and affirmative defense, it stressed that it had the right of way on
the railroad crossing in question, and that it has no legal duty to put up a bar or red light signal in any such crossing. It
insisted that there were adequate, visible, and clear warning signs strategically posted on the sides of the road before
the railroad crossing. It countered that the immediate and proximate cause of the accident was Mercelita’s negligence,
and that he had the last clear chance to avoid the accident. The driver disregarded the warning signs, the whistle blasts
of the oncoming train and the flashlight signals to stop given by the guard. 15 As counterclaim, it prayed that it be
awarded actual and compensatory damages, and litigation expenses. 16
Plaintiffs filed an Amended Complaint17 dated July 28, 1986 to include, as party plaintiff, Chemical Industries of the
Philippines, Inc. (Chemphil), Garcia’s employer, who claimed to have paid for the latter’s medical and hospitalization
expenses, the services rendered by the funeral parlor of the deceased, and the expenses in transferring the remains of
Rhonda Brunty to the United States. 18
After trial on the merits, the RTC rendered its Decision 19 on May 21, 1990 in favor of plaintiffs. The fallo reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs Ethel Brunty and Juan Manuel M. Garcia and against
the defendant Philippine National Railways directing the latter to pay the former the sum of:
1. Thirty Thousand Pesos (₱30,000.00) Philippine Currency, for the death of Rhonda Brunty formerly a resident
of 1595 Ashland Avenue, Des Plaines, Illinois, U.S.A.;
2. One Million Pesos (₱1,000,000.00) Philippine Currency for moral and actual damages due the heirs of Rhonda
Brunty;
3. Seventy-Two Thousand Seven Hundred Sixty Pesos (₱72,760.00) Philippine Currency for damages sustained by
the Mercedes Benz;
4. Fifty Thousand Pesos (₱50,000.00) Philippine Currency as and for attorney's fees, and;
5. Costs of suit.
SO ORDERED.20
Aggrieved, the PNR appealed the case to the CA, raising the following errors:
I.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR THE DEATH OF RHONDA
BRUNTY AND THE CONSEQUENT AWARD OF DAMAGES DUE THE HEIRS OF RHONDA BRUNTY.
II.
THE TRIAL COURT ERRED IN ADJUDGING DEFENDANT-APPELLANT PNR LIABLE FOR THE DAMAGES SUFFERED BY
PLAINTIFF-APPELLEE’S MERCEDES BENZ IN THE AMOUNT OF SEVENTY-TWO THOUSAND SEVEN HUNDRED AND
SIXTY PESOS (₱72,760.00).
III.
THE LOWER COURT ERRED IN AWARDING ATTORNEY’S FEES TO THE PLAINTIFFS-APPELLEES. 21
In its Brief, PNR insisted that the sole and proximate cause of the accident was the negligence and recklessness of Garcia
and Mercelita.22 It insisted that it had provided adequate warning signals at the railroad crossing 23 and had exercised due
care in the selection and supervision of its employees. 24 The RTC erred in awarding damages to Rhonda Brunty as she
cannot be allowed to receive what she is not in a position to give, having been a non-resident alien who did not own a
property in the Philippines.25 It likewise questioned the award of damages on the Mercedes Benz as well as the grant of
attorney’s fees.26 At the very least, Mercelita was guilty of contributory negligence. 27
For their part, appellees countered that appellant was grossly and recklessly negligent in not properly providing the
necessary equipment at the railroad crossing in Rizal, Moncada, Tarlac; 28 appellant was negligent in not exercising due
diligence of a good father of a family in the supervision of its employees, particularly the train operator Alfonso
Reyes;29 the car was driven in a careful and diligent manner, and at a moderate speed, with due regard to all traffic rules
and regulations at that particular time;30 the doctrine of "last clear chance" is not applicable; 31 Ethel Brunty is a non-
resident alien who can rightfully file the instant case; 32 and they are entitled to recover damages from appellant. 33
The CA rendered the assailed Decision34 on August 15, 2005. The dispositive portion reads:
WHEREFORE, premises considered, the assailed decision is hereby AFFIRMED with PARTIAL MODIFICATIONS, increasing
the death indemnity award from ₱30,000.00 to ₱50,000.00, and deleting the award for damages sustained by the
Mercedes Benz.
SO ORDERED.35
The appellate court affirmed the findings of the RTC as to the negligence of the PNR. Considering the circumstances
prevailing at the time of the fatal accident, it ruled that the alleged safety measures installed by the PNR at the railroad
crossing were not merely inadequate – they did not satisfy the well-settled safety standards in
transportation.36 However, the CA did not agree with the RTC’s findings on the contributory negligence of Mercelita, the
driver of the Mercedes Benz. It held that Mercelita could not have foreseen the harm that would befall him and the two
other passengers under the prevailing circumstances, thus, could not be considered guilty of contributory negligence. 37
The PNR, now petitioner, comes before this Court in this Petition for Review on Certiorari on the following grounds:
I.
THE COURT OF APPEALS ERRED IN MANIFESTLY OVERLOOKING CERTAIN RELEVANT FACTS NOT DISPUTED BY THE
PARTIES AND WHICH, IF PROPERLY CONSIDERED, WOULD JUSTIFY A DIFFERENT CONCLUSION SUCH AS:
THE RESPONDENTS’ DRIVER OVERTOOK ANOTHER VEHICLE BY ACCELERATING AT 70 KILOMETERS PER HOUR WITHIN
JUST 50 YARDS AWAY FROM THE RAILROAD TRACKS.
II.
THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE CONTRARY TO THOSE OF THE TRIAL COURT REGARDING
CONTRIBUTORY NEGLIGENCE OF THE RESPONDENTS’ DRIVER.
III.
THE COURT OF APPEALS ERRED IN NOT APPLYING THE DOCTRINE OF LAST CLEAR CHANCE IN THE INSTANT CASE. 38
Petitioner insists that the proximate cause of the mishap was Mercelita’s disregard of traffic rules and regulations. Had
the court considered the fact that Mercelita had overtaken another vehicle a few yards before the railroad track, it
would have reached a different conclusion. 39 Moreover, petitioner asserts, considering that the decisions of the RTC and
the CA vary as to whether or not Mercelita was guilty of contributory negligence, the findings of the RTC should prevail.
Thus, Mercelita’s contributory negligence should not have been ignored. 40 Lastly, petitioner avers that since there is
freedom of control and greater maneuverability on the part of motor vehicles, it is obvious that in railroad crossings,
they have the last clear chance to prevent or avoid an unwanted accident from taking place. 41
In their Comment42 on the petition, respondents reiterate the findings of the RTC and the CA that the breach by
petitioner of its legal duty to provide adequate and necessary public safety device and equipment within the area or
scene of the accident was the proximate cause of the mishap. 43 While it is true that as a general rule, the trial court is in
the best position to evaluate and observe the conduct and demeanor of the witnesses presented during the trial, the CA,
in the exercise of its appellate jurisdiction, has the vested right to modify, reject, or set aside the trial court’s evaluation
and findings.44 As to the application of the doctrine of last clear chance, respondents claim that said issue is being raised
for the first time in this petition. 45 Lastly, respondents cite foreign jurisprudence stating that if the violation is one which
gives rise to liability per se for any resulting injury, the defenses ordinarily available in actions for diligence are barred
and the contributory negligence of the person injured is no defense. 46
The Court is thus tasked to answer the following factual questions: (1) As between petitioner and Mercelita, whose
negligence resulted in the unfortunate collision? (2) Is Mercelita (the driver of the Mercedes Benz) guilty of contributory
negligence? Finally, the application in this case of the doctrine of last clear chance is likewise in question.
Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would
not do.47 In Corliss v. Manila Railroad Company,48 this Court held that negligence is want of the care required by the
circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of
the parties and the degree of care and vigilance which the circumstances reasonably require. 49 In determining whether
or not there is negligence on the part of the parties in a given situation, jurisprudence 50 has laid down the following test:
Did 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, the person is guilty of negligence. The law, in effect, adopts the
standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law.
The issue of who, between the parties, was negligent was thoroughly discussed by both the RTC and the CA. In petitions
for review under Rule 45 of the Revised Rules of Court, only questions of law may be put into issue, and questions of fact
as a general rule, cannot be entertained. The finding of negligence by the RTC, as affirmed by the CA, is a question of fact
which this Court cannot pass upon as it would entail going into factual matters on which the finding of negligence was
based.51 The established rule is that factual findings of the CA affirming those of the trial court are conclusive and
binding on this Court.52
The records of the instant case show that both the RTC and the CA carefully examined the factual circumstances
surrounding the case, and we find no cogent reason to disturb the same. It is, however, worthy to emphasize that
petitioner was found negligent because of its failure to provide the necessary safety device to ensure the safety of
motorists in crossing the railroad track. As such, it is liable for damages for violating the provisions of Article 2176 of the
New Civil Code, viz:
Article 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.
In a long line of cases, the Court held that in order to sustain a claim based on quasi-delict, the following requisites must
concur: (1) damage to plaintiff; (2) negligence, by act or omission, of which defendant, or some person for whose acts he
must respond was guilty; and (3) connection of cause and effect between such negligence and damage. 53 Applying the
foregoing requisites, the CA correctly made the following conclusions:
It was clearly established that plaintiffs-appellees (respondents herein) sustained damage or injury as a result of the
collision. That there was negligence on the part of PNR is, likewise, beyond cavil. Considering the circumstances
prevailing at the time of the fatal accident, the alleged safety measures installed by the PNR at the railroad crossing is
not only inadequate but does not satisfy well-settled safety standards in transportation. x x x
xxxx
x x x An examination of the photographs of the railroad crossing at Moncada, Tarlac presented as evidence by PNR itself
would yield the following: (1.) absence of flagbars or safety railroad bars; (2.) inadequacy of the installed warning
signals; and (3.) lack of proper lighting within the area. Thus, even if there was a flagman stationed at the site as claimed
by PNR (petitioner), it would still be impossible to know or see that there is a railroad crossing/tracks ahead, or that
there is an approaching train from the Moncada side of the road since one’s view would be blocked by a cockpit arena. x
x x54
Moreover, the CA held that a vehicle coming from the Moncada side would have difficulty in knowing that there is an
approaching train because of the slight curve, more so, at an unholy hour as 2:00 a.m. Thus, it is imperative on the part
of the PNR to provide adequate safety equipment in the area. 55
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 in the operation of trains and in the
maintenance of the crossings.56 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 a 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.57
This Court has previously determined the liability of the PNR for damages for its failure to put a cross bar, or signal light,
flagman or switchman, or semaphores. Such failure 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.58
In view of the foregoing, we affirm the factual findings of the CA as well as its conclusion on petitioner’s negligence.
As to whether or not Mercelita was guilty of contributory negligence, we agree with petitioner. 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. 59 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 warning or signs of an
impending danger to health and body. 60 To prove contributory negligence, it is still necessary to establish a causal link,
although not proximate, between the negligence of the party and the succeeding injury. In a legal sense, negligence is
contributory only when it contributes proximately to the injury, and not simply a condition for its occurrence. 61
The court below found that there was a slight curve before approaching the tracks; the place was not properly
illuminated; one’s view was blocked by a cockpit arena; and Mercelita was not familiar with the road. Yet, it was also
established that Mercelita was then driving the Mercedes Benz at a speed of 70 km/hr and, in fact, had overtaken a
vehicle a few yards before reaching the railroad track. Mercelita should not have driven the car the way he did.
However, while his acts contributed to the collision, they nevertheless do not negate petitioner’s liability. Pursuant to
Article 217962 of the New Civil Code, the only effect such contributory negligence could have is to mitigate liability,
which, however, is not applicable in this case, as will be discussed later.1âwphi1
As to whether or not the doctrine of last clear chance is applicable, we rule in the negative. The doctrine of last clear
chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the
other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear
opportunity to avoid the loss but failed to do so, is chargeable with the loss. Stated differently, the antecedent
negligence of plaintiff does not preclude him from recovering damages caused by the supervening negligence of
defendant, who had the last fair chance to prevent the impending harm by the exercise of due diligence. 63 The
proximate cause of the injury having been established to be the negligence of petitioner, we hold that the above
doctrine finds no application in the instant case.
We note that the damages awarded by the appellate court consist of (1) ₱50,000.00 as indemnity for the death of
Rhonda Brunty; (2) ₱1,000,000.00 as actual and moral damages due the heirs of Rhonda Brunty; and (3) ₱50,000.00 as
and by way of attorney’s fees. No damages, however, were awarded for the injuries suffered by Garcia, yet, the latter
never interposed an appeal before the CA nor even before this Court. The record is, likewise, bereft of any allegation and
proof as to the relationship between Mercelita (the driver) and Rhonda Brunty. Hence, the earlier finding of contributory
negligence on the part of Mercelita, which generally has the effect of mitigation of liability, does not apply.
As to the amount of damages awarded, a modification of the same is in order, specifically on the award of actual and
moral damages in the aggregate amount of ₱1,000,000.00.
Actual or compensatory damages are those awarded in order to compensate a party for an injury or loss he suffered.
They arise out of a sense of natural justice, aimed at repairing the wrong done. To be recoverable, they must be duly
proved with a reasonable degree of certainty. A court cannot rely on speculation, conjecture, or guesswork as to the fact
and amount of damages, but must depend upon competent proof that they have suffered, and on evidence of the actual
amount thereof.64 Respondents, however, failed to present evidence for such damages; hence, the award of actual
damages cannot be sustained. However, as the heirs of Rhonda Brunty undeniably incurred expenses for the wake and
burial of the latter, we deem it proper to award temperate damages in the amount of ₱25,000.00 pursuant to prevailing
jurisprudence.65 This is in lieu of actual damages as it would be unfair for the victim’s heirs to get nothing, despite the
death of their kin, for the reason alone that they cannot produce receipts. 66
The relatives of the victim who incurred physical injuries in a quasi-delict are not proscribed from recovering moral
damages in meritorious cases.67 We, therefore, sustain the award of moral damages in favor of the heirs of Rhonda
Brunty.
Moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly caused a person. Although incapable of pecuniary computation, moral damages
must nevertheless be somehow proportional to and in approximation of the suffering inflicted. 68 In the instant case, the
moral suffering of the heirs of Rhonda Brunty was sufficiently established by Ethel Brunty in her deposition, 69 viz:
Q: What have you felt as a result of the death of Rhonda?
A: I felt earnest anguish and mixed feelings of anger and extreme sorrow because she died so far away and alone, and
because her death could so easily be prevented if there had been adequate and appropriate warning signals at the
railroad crossing and it is just an unbearable and irreparable loss. In so many ways, she was my life. It seemed to me that
losing her was just like losing my own life, or worst, and even now, there is no end to our bereavement. I am still on
constant medication to be able to sleep and to be able to perform my duties effectively in my job but it does not take
away the pain of loss.70
In People v. Teehankee, Jr.,71 and in Metro Manila Transit Corporation v. Court of Appeals, 72 we awarded moral damages
in the amount of ₱1,000,000.00 to the heirs of the deceased. In Victory Liner, Inc. v. Heirs of Malecdan, 73 the award of
₱100,000.00 as moral damages was held in keeping with the purpose of the law, while in Macalinao v. Ong, 74 the
amount of ₱50,000.00 was held sufficient.1âwphi1
Considering the circumstances attendant in this case, we find that an award of ₱500,000.00 as moral damages to the
heirs of Rhonda Brunty is proper. In view of recent jurisprudence, indemnity of ₱50,000.00 for the death of Rhonda
Brunty and attorney’s fees amounting to ₱50,000.00 is likewise proper.
WHEREFORE, premises considered, the Decision of the Court of Appeals dated August 15, 2005 is AFFIRMED WITH
MODIFICATIONS. The award of actual damages is deleted, and in lieu thereof, temperate damages of ₱25,000.00 is
awarded to the heirs of Rhonda Brunty. The award of moral damages is reduced to ₱500,000.00.
SO ORDERED.
G.R. No. 219649 July 26, 2017
AL DELA CRUZ, Petitioner,
vs
CAPT. RENATO OCTAVIANO AND WILMA OCTAVIANO, Respondents.
DECISION
Before this Court is the Petition for Review on Certiorari under Rule 45 of the Rules of Court, dated August 12, 2015, of
petitioner Al Dela Cruz that seeks to reverse and set aside the Decision 1 dated January 30, 2014 and Resolution2 dated
June 22, 2015 of the Court of Appeals (CA) reversing the Decision dated February 24, 2009 of the Regional Trial Court
(RTC), Branch 275, Las Piñas City in a civil case for damages.
The facts follow.
Around 9:00 p.m. on April 1, 1999, respondent Captain Renato Octaviano, a military dentist assigned at the Office of the
Chief Dental Service, Armed Forces of the Philippines, Camp Aguinaldo, Quezon City, respondent Wilma Octaviano,
Renato's mother and Janet Octaviano, Renato's sister, rode a tricycle driven by Eduardo Y. Padilla. Respondent Wilma
and Janet were inside the sidecar of the vehicle, while Renato rode at the back of the tricycle driver. They then
proceeded to Naga Road towards the direction of CAA and BF Homes. Renato was asking his mother for a change to
complete his P10.00 bill when he looked at the road and saw a light from an oncoming car which was going too fast. The
car, driven by petitioner, hit the back portion of the tricycle where Renato was riding. The force of the impact caused the
tricycle to turn around and land on the pavement near the gutter. Thus, Renato was thrown from the tricycle and landed
on the gutter about two meters away. Renato felt severe pain in his lower extremities and went momentarily
unconscious and when he regained consciousness, he heard his sister shouting for help. A man came followed by other
people. The first man who answered Janet's call for help shouted to another man at a distance saying: "Ikaw, dalhin mo
yung sasakyan mo dito. Ikaw ang nakabangga sa kanila. Dalhin mo sila sa ospital." They pulled Renato out of the gutter
and carried him to the car. Petitioner brought them to his house and alighted thereat for two to three minutes and then
he brought the passengers to a clinic. Renato insisted on being brought to a hospital because he realized the severity of
his injuries. Thus, Renato, his mother, and Janet were brought to Perpetual Help Medical Center where Renato's leg was
amputated from below the knee on that same night. After his treatment at Perpetual Help Medical Center, Renato was
brought to the AFP Medical Center at V. Luna General Hospital and stayed there for nine months for rehabilitation.
Shortly before his discharge at V. Luna, he suffered bone infection. He was brought to Fort Bonifacio Hospital where he
was operated on thrice for bone infection. Thereafter, he was treated at the same hospital for six months. In the year
2000, he had a prosthesics attached to his leg at V. Luna at his own expense. Renato spent a total of P623,268.00 for his
medical bills and prosthetics.
Thus, Renato and his mother Wilma filed with the RTC a civil case for damages against petitioner and the owner of the
vehicle.
Aside from their testimonies, the complainants, herein respondents presented the testimonies of S/Sgt. Joselito
Lacuesta (S/Sgt. Lacuesta) and Antonio Fernandez.
According to S/Sgt. Lacuesta, he was somewhere along Naga Road around 9:00 p.m. when the incident occurred. He was
talking with his three friends when he felt like urinating, so he moved a few paces away from his companions. When he
was about to relieve himself, he saw an oncoming vehicle with bright lights and also saw a tricycle which was not moving
fast and after the latter passed him by, it collided with the vehicle. He then saw someone fell down near him and when
he saw that the car was about to move, he told his companions to stop the car from leaving. Thereafter, he noticed that
the person who landed in front of him was already unconscious so he helped him and called one of his companions to
carry the injured man to the car. He told the driver of the car "Isakay mo ito, nabangga mo ito," and then proceeded to
board the injured man in front of the car, while he told the other passengers of the tricycle to board at the back of the
car. His companions forcibly took ("pinilas") the license plate of the car and he also noticed that the driver of the car was
drunk ("nakainom"). After the car left, he and his companions stayed in the area wherein a policeman later arrived and
towed the tricycle.
Witness Antonio Fernandez, one of S/Sgt. Lacuesta's companions, corroborated the latter's testimony.
Petitioner, on the other hand, testified that on April 1, 1999, he borrowed the car of Dr. Isagani Cirilo, a Honda Civic
registered under the name of the latter, to bring his mother to church. Thus, he then brought his mother to the
Jehovah's Witness church in Greenview which was about 20 to 25 minute drive from their house in Naga Road,
Pulanlupa. Around 6:25 p.m., he went home directly from the church and waited for the call of his mother. Thereafter,
he left the house around 8:30 p.m. and went to pick up fish food that he previously ordered before fetching his mother.
When he was along Naga Road, he noticed a tricycle from a distance of about 100 to 120 meters away and was going the
opposite direction. He also noticed an Elf van parked along the road on the opposite side. He flashed his low beam and
high beam light to signal the tricycle. The tricycle then slowed down and stopped a bit, hence, he also slowed down.
Suddenly, the tricycle picked up speed from its stop position and the two vehicles collided. He then stopped his car a few
meters away from the collision site and made a u-turn to confront the driver of the tricycle. He also noticed that there
were already about a dozen people around the site of the collision. He saw a man sitting on the gutter and proceeded to
move the car towards the former and asked him and his companions to help board the injured man and the latter's co-
passengers of the tricycle in the car he was driving. Thereafter, he drove them to Perpetual Help Hospital where the man
was treated for his injuries.
The testimony of Imelda Cirilo, the wife of the owner of the car, was also presented. She testified, among others, that on
the night of the accident, petitioner borrowed their car to bring the latter's mother to the church and that upon learning
of the incident, she went to Perpetual Help Hospital and signed on the Admission Slip so that respondent Renato could
be operated on without the former admitting any liability. She also testified that she offered to help the victims, but the
latter refused and that she admitted that she did not give any financial assistance for the hospital bills nor for medicines.
Renato Martinez, a traffic enforcer, was also presented and testified that he received a call through radio about an
incident along Naga Road, Pulanlupa, Las Pinas City around 8:30 p.m. so he proceeded to the area and arrived there
around 9:00 p.m. When he arrived at the scene, nobody was there and that the vehicles involved in the collision were no
longer there. At the scene of the accident, he saw splinters of glass on the road but there was no blood and he also saw
an Elf van parked along the street fronting CAA. He then proceeded to Perpetual Help Hospital after he received a call on
his radio that the people involved in the accident were already at the said hospital. At the hospital, he was able to talk
with petitioner. Thereafter, he called up his base and informed the base that the driver of the Honda Civic was at the
hospital. Later on, Sgt. Soriano, the investigator-on-duty arrived at the hospital and instructed Sgt. Martinez to
accompany petitioner to the headquarters because some relatives of respondents were asking that petitioner be
brought to Fort Bonifacio. Thus, Sgt. Martinez and petitioner boarded the Honda Civic involved in the accident and
proceeded to the headquarters.
The RTC, in its Decision dated February 24, 2009, dismissed the claim of respondents. According to the RTC, petitioner's
version of the incident was more believable because it was corroborated by Sgt. Martinez who testified that he saw an
Elf van parked along the street. The RTC also ruled that petitioner did everything that was expected of a cautious driver.
The court further ruled that the owner of the Honda Civic, Isagani Cirilo could not be held liable because petitioner was a
family friend who merely borrowed the car and not his driver nor his employee. It was also ruled that the liability rests
on the tricycle driver who drove without license and petitioner's contributory negligence in riding at the back of the
driver in violation of Municipal Ordinance No. 35-88 that limits the passengers of a tricycle to three persons including
the driver.
Respondents appealed the RTC decision to the CA.
In its Decision dated January 30, 2014, the CA reversed the RTC's decision. According to the CA, petitioner was negligent
as shown in the police report. It also found that petitioner was positive for alcoholic breath, thus, he violated Republic
Act (R.A.) No. 4136 that prohibits any person from driving a motor vehicle while under the influence of alcohol or
narcotic drug. It also ruled that the owner of the vehicle is equally responsible and liable for the accident and the
resulting injuries that the victims sustained. As such, the CA disposed of the case as follows:
WHEREFORE, in view of the foregoing, the decision appealed from is hereby REVERSED and SET ASIDE. Defendants are
held solidarily liable to plaintiffs and ordered to pay the plaintiffs in the following manner:
1. pay plaintiff Wilma Octaviano the following: medical expenses, P1,500.00, hospital expenses, P1,450.00 and
transportation expenses, P6,000.00;
2. pay plaintiff Renato Octaviano the following: hospital expenses, P369,354.00, medical expenses, P60,462.23, loss of
income, P90,000.00;
3. pay [plaintiff] Wilma Octaviano P50,000.00 as and by way of moral damages;
4. pay plaintiff Renato Octaviano P100,000.00 as and by way of moral damages;
5. pay plaintiffs P20,000.00 each as and by way of exemplary damages; and
6. pay plaintiffs P100,000.00 as attorney's fees.
SO ORDERED.3
Thus, the present petition after the CA denied petitioner's motion for reconsideration.
Petitioner relies upon the following grounds:
I
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE PETITIONER WAS NEGLIGENT WHILE DRIVING HIS CAR.
II
THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE NOT SUPPORTED BY THE EVIDENCE ADDUCED.
III
THE COURT OF APPEALS GRAVELY ERRED IN FAILING TO CONSIDER THAT THE PROXIMATE CAUSE OF THE INCIDENT WAS
THE FAULT OR GROSS NEGLIGENCE OF THE TRICYCLE DRIVER.
IV
THE COURT OF APPEALS MANIFESTLY OVERLOOKED CERTAIN FACTS NOT DISPUTED BY THE PARTIES AND WHICH, IF
PROPERLY CONSIDERED, WOULD JUSTIFY A DIFFERENT CONCLUSION. 4
Petitioner insists that he was not negligent and that the driver of the tricycle was the one at fault. He also argues that
the investigation report relied upon by the CA should not have been used in determining what actually transpired
because the traffic investigator was not presented as a witness and petitioner was not able to confront or cross-examine
him regarding the report. Petitioner further denies that he was drunk when the incident happened and that the CA erred
in appreciating the mere opinions of the witnesses that he appeared drunk at that time.
In their Comment, respondents contend that the issues raised by petitioner are factual in nature and are not the proper
subjects of a petition for review under Rule 45. They also contend that the CA did not err in their finding that petitioner
was negligent at the time of the incident.
A close reading of the present petition would show that the issues raised are factual in nature. This Court has recognized
exceptions to the rule that the findings of fact of the CA are conclusive and binding in the following instances: (1) when
the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the CA went
beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7)
when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific
evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; and (11) when the CA manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly considered, would justify a different conclusion. 5 Inasmuch as the RTC and
the CA arrived at conflicting findings of fact on who was the negligent party, the Court holds that an examination of the
evidence of the parties needs to be undertaken to properly determine the issue. 6
The concept of negligence has been thoroughly discussed by this Court in Romulo Abrogar, et al. v. Cosmos Bottling
Company, et al.,7 thus:
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. 8 Under Article 1173 of
the Civil Code, it consists of the "omission of that diligence which is required by the nature of the obligation and
corresponds with the circumstances of the person, of the time and of the place." 9 The Civil Code makes liability for
negligence clear under Article 2176,10 and Article 20.11
To determine the existence of negligence, the following time-honored test has been set in Picart v. Smith:12
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 question as to what would constitute the conduct of a prudent man in a given situation must of course be always
determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculation
cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the
future. Hence, they can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued?
If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed
by the ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist.
Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is
said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing the conduct or guarding against its consequences. 13
xxxx
In order for liability from negligence to arise, there must be not only proof of damage and negligence, but also proof that
the damage was the consequence of the negligence. The Court has said in Vda. de Gregorio v. Go Chong Bing:14
x x x Negligence as a source of obligation both under the civil law and in American cases was carefully considered and it
was held:
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."
In this case, the RTC found no reason to conclude that petitioner was negligent. The CA, however, found the contrary.
This Court must then ascertain whose evidence was preponderant, for Section 1, 15 Rule 133 of the Rules of Court
mandates that in civil cases, like this one, the party having the burden of proof must establish his case by a
preponderance of evidence. Burden of proof is the duty of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence required by law. 16 It is basic that whoever alleges a fact has the
burden of proving it because a mere allegation is not evidence. 17 Generally, the party who denies has no burden to
prove.18 In civil cases, the burden of proof is on the party who would be defeated if no evidence is given on either
side.19 The burden of proof is on the plaintiff if the defendant denies the factual allegations of the complaint in the
manner required by the Rules of Court, but it may rest on the defendant if he admits expressly or impliedly the essential
allegations but raises affirmative defense or defenses, which if proved, will exculpate him from liability. 20
By preponderance of evidence, according to Raymundo v. Lunaria:21
x x x is meant that the evidence as a whole adduced by one side is superior to that of the other. It refers to the weight,
credit and value of the aggregate evidence on either side and is usually considered to be synonymous with the term
"greater weight of evidence" or "greater weight of the credible evidence." It is evidence which is more convincing to the
court as worthy of belief than that which is offered in opposition thereto.
In addition, according to United Airlines, Inc. v. Court of Appeals,22 the plaintiff must rely on the strength of his own
evidence and not upon the weakness of the defendant's.
After reviewing the records of the case, this Court affirms the findings of the CA. In ruling that petitioner was negligent,
the CA correctly appreciated the pieces of evidence presented by the respondents, thus:
First, with regard to the damage or injury, there is no question that the plaintiffs suffered damage due to the incident on
April 1, 1999. Plaintiff Renato Octaviano's right leg was crushed by the impact of the Honda Civic driven by defendant
Dela Cruz against the tricycle where the Octavianos were riding and as a result thereof, Renato's right leg was
amputated. Plaintiff Wilma Octaviano suffered traumatic injuries/hematoma on different parts of her body as borne by
the evidence submitted to the trial court. The damages or injuries were duly proved by preponderant evidence.
Second, with regard to the wrongful act or omission imputable to the negligence of defendant Al Dela Cruz, We hold
that the trial court missed the glaring fact that defendant Dela Cruz was guilty of negligence.
The police report prepared by the traffic investigator SPO2 Vicente Soriano detailed what happened on the night of April
1, 1999, to wit:
xxxx
On the Spot Investigation conducted by the undersigned, showed that Vehicle 2 while moving ahead and upon arriving
in front of said motor shop, Vehicle 2 avoided hitting another tricycle which vehicle (Tricycle) was standing while waiting
for a would-be passenger. Said Veh-2 driver swerved the car to the left and it was at this instance when said Veh-1 was
sideswiped by said Veh-2.
xxx
Weather Condition: Fair

Road condition: Concrete and Dry
Driver's Condition: Veh-1, Normal; Veh-2 Positive for Alcoholic Breath (AB)"
For a clearer understanding of the said police report, Vehicle-1 referred to by Soriano is the tricycle where plaintiffs were
riding, and Vehicle-2 is the Honda Civic driven by Dela Cruz.
Was the statement in the police report that Al Dela Cruz was positive for alcoholic breath substantiated/corroborated?
Yes. Two witnesses testified that Dela Cruz appeared to be drunk on that fateful night. Joey Lacuesta and Antonio
Fernandez were there on the spot when the incident happened. They were the first ones to assist the victim Renato
Octaviano who was slumped unconscious in the gutter. Lacuesta was the one who boarded the injured Renato into the
front seat of the car and he noticed that the driver was drunk:
Q: You said that you placed the injured person in front of the Honda Civic, the driver was there in the car, what, if
anything did you notice about the condition of the driver of the car?
A: Nakainom, I noticed that because when I boarded the injured person into the front passenger seat, I noticed that he is
drunk.
Antonio Fernandez heard his friend Aries Sy shout at the driver of the car to stop when it appeared to by continuously
moving. Fernandez also noted that the driver appeared to be drunk, thus:
Q: Now you said that the driver of the car was drunk. Did you say that when you testified?
A: Yes, sir. Lasing yung driver.
Q: What made you think that this driver of the car was drunk?
A: Because of his actions and he was also mad.
Q: Because he was mad, then you thought that he was drunk, x x x?

A: No, Sir. You can see or you can observe the actions of a person if he is drunk.
xxxx
More importantly, the law prohibits drunk driving. Republic Act No. 4136, Chapter IV, Article V, Section 53 known as
Land Transportation and Traffic Code provides that no person shall drive a motor vehicle while under the influence of
liquor or narcotic drug. It is established by plaintiffs evidence that defendant Dela Cruz drove the Honda Civic while
under the influence of alcohol thus proving his negligence.
With regard to the third requisite, that there be a direct relation of cause and effect between the damage or injury and
the fault or negligence is clearly present in the case at bar. Had defendant Dela Cruz exercised caution, his Honda Civic
would not have collided with the tricycle and plaintiffs leg would not be crushed necessitating its amputation. The cause
of the injury or damage to the plaintiffs leg is the negligent act of defendant Dela Cruz.
The last requisite is that there be no pre-existing contractual relation between the parties. It is undeniable that
defendant and plaintiffs had no prior contractual relation, that they were strangers to each other before the incident
happened. Thus, the four requisites that must concur under Article 2176 are clearly established in the present case.
Plaintiffs are entitled to claim damages.23
Petitioner argues that the CA erred in relying on the police report without petitioner having the chance to cross-examine
the police officer who prepared the same. Be that as it may, the contents of the said police report are corroborated by
the testimonies of the other witnesses presented before the court. The said contents of the police report are more
believable than the version of petitioner of what transpired. As correctly observed by the CA:
Dela Cruz narrated in his testimony that he saw a parked Elf van on the opposite road and the tricycle also on the
opposite road going to the opposite direction. He claims that he flashed his low beam and high beam to warn the
tricycle, the tricycle stopped momentarily and then picked up speed "umarangkada" and that was why the two vehicles
collided. However, he admitted that the point of impact of the two vehicles was "lagpas lang konti" from the front of the
parked Elf. He could not stop. He did not know what to do. He slowed down. He did not stop but continued driving. If it
were true that as far as about 100-120 meters away he already saw the parked Elf van and the tricycle, he could have
slowed down or stopped to give way to the tricycle to avoid collision. In fact, if the collision point was right ahead of the
front of the parked Elf van, it means that the tricycle was already past the parked Elf and it was Dela Cruz who forced his
way into the two-way road. More evident is that the tricycle was hit at the back portion meaning it was already turning
after passing the parked Elf. Had Dela Cruz slowed down or stopped a short while to let the tricycle pass clear of the van,
then the incident would not have happened. The reasonable foresight required of a cautious driver was not exercised by
defendant Dela Cruz.24
As to the denial of petitioner that he was drunk at the time of the accident, whether or not he was in a state of
inebriation is inconsequential given the above findings. His being sober does not and will not erase the fact that he was
still negligent and that the proximate cause of the collision was due to his said negligence. Proximate cause is "that
which, in natural and continuous sequence, unbroken by any new cause, produces an event, and without which the
event would not have occurred." 25 As such, petitioner is wrong when he claims that the proximate cause of the accident
was the fault of the tricycle driver.
Neither is it correct to impute contributory negligence on the part of the tricycle driver and respondent Renato when the
latter had violated a municipal ordinance that limits the number of passengers for each tricycle for hire to three persons
including the driver. 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. 26 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 warning or signs of an impending danger to health and body. 27 To prove contributory negligence,
it is still necessary to establish a causal link, although not proximate, between the negligence of the party and the
succeeding injury. In a legal sense, negligence is contributory only when it contributes proximately to the injury, and not
simply a condition for its occurrence.28 In this case, the causal link between the alleged negligence of the tricycle driver
and respondent Renato was not established. This court has appreciated that negligence per se, arising from the mere
violation of a traffic statute, need not be sufficient in itself in establishing liability for damages. 29 Also, noteworthy is the
ruling of the CA as to the matter, thus:
The trial court absolved defendants of liability because of the failure of the plaintiffs to present the tricycle driver and
thus concluding that plaintiffs suppressed evidence adverse to them. This is error on the part of the trial court. The non-
presentation of the tricycle driver as a witness does not affect the claim of the plaintiffs-appellants against herein
defendants-appellees. Even granting that the tricycle driver was presented in court and was proved negligent, his
negligence cannot cancel out the negligence of defendant Dela Cruz, because their liabilities arose from different
sources. The obligation or liability of the tricycle driver arose out of the contract of carriage between him and petitioners
whereas defendant Dela Cruz is liable under Article 2176 of the Civil Code or under quasi-delicts. There is ample
evidence to show that defendant Dela Cruz was negligent within the purview of Article 2176 of the Civil Code, hence, he
cannot escape liability.30
This Court further agrees with the CA that the respondents are entitled to the award of moral and exemplary damages.
Moral damages, x x x, may be awarded to compensate one for manifold injuries such as physical suffering, mental
anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. These damages must be
understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate the claimant
for the injury suffered. Although incapable of exactness and no proof of pecuniary loss is necessary in order that moral
damages may be awarded, the amount of indemnity being left to the discretion of the court, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have sprung from any of
the cases expressed in Article 221931 and Article 222032 of the Civil Code, x x x33 Also known as "punitive" or "vindictive"
damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrongdoings, and as a
vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of
outrageous conduct. These terms are generally, but not always, used interchangeably. In common law, there is
preference in the use of exemplary damages when the award is to account for injury to feelings and for the sense of
indignity and humiliation suffered by a person as a result of an injury that has been maliciously and wantonly
inflicted,34 the theory being that there should be compensation for the hurt caused by the highly reprehensible conduct
of the defendant - associated with such circumstances as willfulness, wantonness, malice, gross negligence or
recklessness, oppression, insult or fraud or gross fraud 35 - that intensifies the injury. The terms punitive or vindictive
damages are often used to refer to those species of damages that may be awarded against a person to punish him for
his outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and others
like him from similar conduct in the future. 36
In awarding the above, the CA correctly ruled that:

It is extant in the records that defendants did not overturn or disprove the plaintiffs' claim for actual damages such as
the hospital bills/expenses which were duly supported by documentary evidence (receipts). It was also duly proven that
defendant Al Dela Cruz acted with gross disregard for the suffering of his victims when he refused to board them in his
car and only did so when forced by the by-standers who assisted the victims, when he drove to his house first before
driving to a clinic then to [the] hospital when it was obvious that Renato Octaviano's wound was severe and needed
immediate professional attention. These insensitivity of defendant caused suffering to the plaintiffs that must be
compensated.37
As to the award of attorney's fees, Article 2208 of the New Civil Code provides the following:
ART. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be
recovered, except:
(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses
to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and
demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should
be recovered.
In this case, since exemplary damages are awarded, the award of attorney's fees is necessary.
WHEREFORE, the Petition for Review on Certiorari under Rule 45 of the Rules of Court, dated August 12, 2015, of
petitioner Al Dela Cruz is DENIED for lack of merit. Consequently, the Decision dated January 30, 2014 and Resolution
dated June 22, 2015 of the Court of Appeals in CA-G.R. CV No. 93399 are AFFIRMED.
SO ORDERED.
G.R. No. 188363 February 27, 2013
ALLIED BANKING CORPORATION, Petitioner,

vs
BANK OF THE PHILIPPINE ISLANDS, Respondents.
DECISION
A collecting bank is guilty of contributory negligence when it accepted for deposit a post-dated check notwithstanding
that said check had been cleared by the drawee bank which failed to return the check within the 24-hour reglementary
period.
Petitioner Allied Banking Corporation appeals the Decision 1 dated March 19, 2009 of the Court of Appeals (CA) in CA-
G.R. SP No. 97604 which set aside the Decision 2 dated December 13, 2005 of the Regional Trial Court (RTC) of Makati
City, Branch 57 in Civil Case No. 05-418.
The factual antecedents:
On October 10, 2002, a check in the amount of P1,000,000.00 payable to “Mateo Mgt. Group International” (MMGI) was
presented for deposit and accepted at petitioner’s Kawit Branch. The check, post-dated “Oct. 9, 2003”, was drawn
against the account of Marciano Silva, Jr. (Silva) with respondent Bank of the Philippine Islands (BPI) Bel-Air Branch.
Upon receipt, petitioner sent the check for clearing to respondent through the Philippine Clearing House Corporation
(PCHC).3
The check was cleared by respondent and petitioner credited the account of MMGI with P1,000,000.00. On October 22,
2002, MMGI’s account was closed and all the funds therein were withdrawn. A month later, Silva discovered the debit of
P1,000,000.00 from his account. In response to Silva’s complaint, respondent credited his account with the aforesaid
sum.4
On March 21, 2003, respondent returned a photocopy of the check to petitioner for the reason: “Postdated.” Petitioner,
however, refused to accept and sent back to respondent a photocopy of the check. Thereafter, the check, or more
accurately, the Charge Slip, was tossed several times from petitioner to respondent, and back to petitioner, until on May
6, 2003, respondent requested the PCHC to take custody of the check. Acting on the request, PCHC directed the
respondent to deliver the original check and informed it of PCHC’s authority under Clearing House Operating Memo
(CHOM) No. 279 dated 06 September 1996 to split 50/50 the amount of the check subject of a “Ping-Pong” controversy
which shall be implemented thru the issuance of Debit Adjustment Tickets against the outward demands of the banks
involved. PCHC likewise encouraged respondent to submit the controversy for resolution thru the PCHC Arbitration
Mechanism.5
However, it was petitioner who filed a complaint 6 before the Arbitration Committee, asserting that respondent should
solely bear the entire face value of the check due to its negligence in failing to return the check to petitioner within the
24-hour reglementary period as provided in Section 20.1 7 of the Clearing House Rules and Regulations 8 (CHRR) 2000.
Petitioner prayed that respondent be ordered to reimburse the sum of P500,000.00 with 12% interest per annum, and
to pay attorney’s fees and other arbitration expenses.
In its Answer with Counterclaims,9 respondent charged petitioner with gross negligence for accepting the post-dated
check in the first place. It contended that petitioner’s admitted negligence was the sole and proximate cause of the loss.
On December 8, 2004, the Arbitration Committee rendered its Decision 10 in favor of petitioner and against the
respondent. First, it ruled that the situation of the parties does not involve a “Ping-Pong” controversy since the subject
check was neither returned within the reglementary time or through the PCHC return window, nor coursed through the
clearing facilities of the PCHC.
As to respondent’s direct presentation of a photocopy of the subject check, it was declared to be without legal basis
because Section 21.111 of the CHRR 2000 does not apply to post-dated checks. The Arbitration Committee further noted
that respondent not only failed to return the check within the 24-hour reglementary period, it also failed to institute any
formal complaint within the contemplation of Section 20.3 12 and it appears that respondent was already contented with
the 50-50 split initially implemented by the PCHC. Finding both parties negligent in the performance of their duties, the
Committee applied the doctrine of “Last Clear Chance” and ruled that the loss should be shouldered by respondent
alone, thus:
WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiff Allied Banking Corporation and
against defendant Bank of the Philippine Islands, ordering the latter to pay the former the following:
(a) The sum of P500,000.00, plus interest thereon at the rate of 12% per annum counted from the date of filing of the
complaint;
(b) Attorney’s fees in the amount of P25,000.00;
(c) The sum of P2,090.00 as and by way of reimbursement of filing fees, plus the cost of suit.
SO ORDERED.13
Respondent filed a motion for reconsideration 14 but it was denied by the PCHC Board of Directors under Board
Resolution No. 10-200515 dated April 22, 2005. The Board pointed out that what actually transpired was a “ping-pong”
“not of a check but of a Charge Slip (CS) enclosed in a carrier envelope that went back and forth through the clearing
system in apparent reaction by [petitioner] to the wrongful return via the PCHC clearing system.” Respondent’s conduct
was held as a “gross and unmistakably deliberate violation” of Section 20.2, 16 in relation to Section 20.1(e) of the CHRR
2000.17
On May 13, 2005, respondent filed a petition for review 18 in the RTC claiming that PCHC erred in constricting the return
of a post-dated check to Section 20.1, overlooking the fact that Section 20.3 is also applicable which provision
necessarily contemplates defects that are referred to in Section 20.1 as both sections are subsumed under the general
provision (Section 20) on the return of regular items. Respondent also argued that assuming it to be liable, the PCHC
erred in holding it solely responsible and should bear entirely the consequent loss considering that while respondent
may have the “last” opportunity in proximity, it was petitioner which had the longest, fairest and clearest chance to
discover the mistake and avoid the happening of the loss. Lastly, respondent assailed the award of attorney’s fees,
arguing that PCHC’s perception of “malice” against it and misuse of the clearing machinery is clearly baseless and
unfounded.
In its Decision dated December 13, 2005, the RTC affirmed with modification the Arbitration Committee’s decision by
deleting the award of attorney’s fees. The RTC found no merit in respondent’s stance that through inadvertence it failed
to discover that the check was post-dated and that confirmation within 24 hours is often “elusive if not outright
impossible” because a drawee bank receives hundreds if not thousands of checks in an ordinary clearing day. Thus:
Petitioner admitted par. 4 in its Answer with Counterclaim and in its Memorandum, further adding that upon receipt of
the subject check “through inadvertence”, it did not notice that the check was postdated, hence, petitioner did not
return the same to respondent.”
These contradict petitioner’s belated contention that it discovered the defect only after the lapse of the reglementary
period. What the evidence on record discloses is that petitioner received the check on October 10, 2002, that it was
promptly sent for clearing, that through inadvertence, it did not notice that the check was postdated. Petitioner did not
even state when it discovered the defect in the subject check.
Likewise, petitioner’s contention that its discovery of the defect was a non-issue in view of the admissions made in its
Answer is unavailing. The Court has noted the fact that the PCHC Arbitration Committee conducted a clarificatory
hearing during which petitioner admitted that its standard operating procedure as regards confirmation of checks was
not followed. No less than petitioner’s witness admitted that BPI tried to call up the drawer of the check, as their
procedure dictates when it comes to checks in large amounts. However, having initially failed to contact the drawer, no
follow up calls were made nor other actions taken. Despite these, petitioner cleared the check. Having admitted making
said calls, it is simply impossible for petitioner to have missed the fact that the check was postdated.19 (Emphasis
supplied)
With the denial of its motion for partial reconsideration, respondent elevated the case to the CA by filing a petition for
review under Rule 42 of the 1997 Rules of Civil Procedure, as amended.
By Decision dated March 19, 2009, the CA set aside the RTC judgment and ruled for a 60-40 sharing of the loss as it
found petitioner guilty of contributory negligence in accepting what is clearly a post-dated check. The CA found that
petitioner’s failure to notice the irregularity on the face of the check was a breach of its duty to the public and a telling
sign of its lack of due diligence in handling checks coursed through it. While the CA conceded that the drawee bank has a
bigger responsibility in the clearing of checks, it declared that the presenting bank cannot take lightly its obligation to
make sure that only valid checks are introduced into the clearing system. According to the CA, considerations of public
policy and substantial justice will be served by allocating the damage on a 60-40 ratio, as it thus decreed:
WHEREFORE, the decision of the Regional Trial Court of Makati City (Branch 57) dated December 13, 2005 is ANNULLED
and SET ASIDE and judgment is rendered ordering petitioner to pay respondent Allied Banking Corporation the sum of
P100,000.00 plus interest thereon at the rate of 6% from July 10, 2003, which shall become 12% per annum from finality
hereof, until fully paid, aside from costs.
SO ORDERED.20
Its motion for reconsideration having been denied by the CA, petitioner is now before the Court seeking a partial
reversal of the CA’s decision and affirmance of the December 13, 2005 Decision of the RTC.
Essentially, the two issues for resolution are: (1) whether the doctrine of last clear chance applies in this case; and (2)
whether the 60-40 apportionment of loss ordered by the CA was justified.
As well established by the records, both petitioner and respondent were admittedly negligent in the encashment of a
check post-dated one year from its presentment.
Petitioner argues that the CA should have sustained PCHC’s finding that despite the antecedent negligence of petitioner
in accepting the post-dated check for deposit, respondent, by exercising reasonable care and prudence, might have
avoided injurious consequences had it not negligently cleared the check in question. It pointed out that in applying the
doctrine of last clear chance, the PCHC cited the case of Philippine Bank of Commerce v. Court of Appeals 21 which ruled
that assuming the bank’s depositor, private respondent, was negligent in entrusting cash to a dishonest employee, thus
providing the latter with the opportunity to defraud the company, it cannot be denied that petitioner bank had the last
clear opportunity to avert the injury incurred by its client, simply by faithfully observing their self-imposed validation
procedure.
Petitioner underscores respondent’s failure to observe clearing house rules and its own standard operating procedure
which, the PCHC said constitute further negligence so much so that respondent should be solely liable for the loss.
Specifically, respondent failed to return the subject check within the 24-hour reglementary period under Section 20.1
and to institute any formal complaint within the contemplation of Section 20.3 of the CHRR 2000. The PCHC likewise
faulted respondent for not making follow-up calls or taking any other action after it initially attempted, without success,
to contact by telephone the drawer of the check, and clearing the check despite such lack of confirmation from its
depositor in violation of its own standard procedure for checks involving large amounts.
The doctrine of last clear chance, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for
the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s negligence. 22 The doctrine
necessarily assumes negligence on the part of the defendant and contributory negligence on the part of the plaintiff, and
does not apply except upon that assumption. 23 Stated differently, the antecedent negligence of the plaintiff does not
preclude him from recovering damages caused by the supervening negligence of the defendant, who had the last fair
chance to prevent the impending harm by the exercise of due diligence. 24 Moreover, in situations where the doctrine
has been applied, it was defendant’s failure to exercise such ordinary care, having the last clear chance to avoid loss or
injury, which was the proximate cause of the occurrence of such loss or injury. 25
In this case, the evidence clearly shows that the proximate cause of the unwarranted encashment of the subject check
was the negligence of respondent who cleared a post-dated check sent to it thru the PCHC clearing facility without
observing its own verification procedure. As correctly found by the PCHC and upheld by the RTC, if only respondent
exercised ordinary care in the clearing process, it could have easily noticed the glaring defect upon seeing the date
written on the face of the check “Oct. 9, 2003”. Respondent could have then promptly returned the check and with the
check thus dishonored, petitioner would have not credited the amount thereof to the payee’s account. Thus,
notwithstanding the antecedent negligence of the petitioner in accepting the post-dated check for deposit, it can seek
reimbursement from respondent the amount credited to the payee’s account covering the check.
What petitioner omitted to mention is that in the cited case of Philippine Bank of Commerce v. Court of Appeals,26 while
the Court found petitioner bank as the culpable party under the doctrine of last clear chance since it had, thru its teller,
the last opportunity to avert the injury incurred by its client simply by faithfully observing its own validation procedure,
it nevertheless ruled that the plaintiff depositor (private respondent) must share in the loss on account of
its contributory negligence. Thus:
The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was likewise negligent in not
checking its monthly statements of account. Had it done so, the company would have been alerted to the series of
frauds being committed against RMC by its secretary. The damage would definitely not have ballooned to such an
amount if only RMC, particularly Romeo Lipana, had exercised even a little vigilance in their financial affairs. This
omission by RMC amounts to contributory negligence which shall mitigate the damages that may be awarded to the
private respondent under Article 2179 of the New Civil Code, to wit:
“x x x. When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded.”
In view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a 60-40
ratio. Thus, 40% of the damage awarded by the respondent appellate court, except the award of P25,000.00 attorney’s
fees, shall be borne by private respondent RMC; only the balance of 60% needs to be paid by the petitioners. The award
of attorney’s fees shall be borne exclusively by the petitioners. 27 (Italics in the original; emphasis supplied)
In another earlier case,28 the Court refused to hold petitioner bank solely liable for the loss notwithstanding the finding
that the proximate cause of the loss was due to its negligence. Since the employees of private respondent bank were
likewise found negligent, its claim for damages is subject to mitigation by the courts. Thus:
Both banks were negligent in the selection and supervision of their employees resulting in the encashment of the forged
checks by an impostor. Both banks were not able to overcome the presumption of negligence in the selection and
supervision of their employees. It was the gross negligence of the employees of both banks which resulted in the fraud
and the subsequent loss. While it is true that petitioner BPI’s negligence may have been the proximate cause of the
loss, respondent CBC’s negligence contributed equally to the success of the impostor in encashing the proceeds of the
forged checks. Under these circumstances, we apply Article 2179 of the Civil Code to the effect that while respondent
CBC may recover its losses, such losses are subject to mitigation by the courts. x x x
Considering the comparative negligence of the two (2) banks, we rule that the demands of substantial justice are
satisfied by allocating the loss of P2,413,215.16 and the costs of the arbitration proceedings in the amount of P7,250.00
and the costs of litigation on a 60-40 ratio. Conformably with this ruling, no interests and attorney’s fees can be awarded
to either of the parties.29 (Emphasis supplied)
Apportionment of damages between parties who are both negligent was followed in subsequent cases involving banking
transactions notwithstanding the court’s finding that one of them had the last clear opportunity to avoid the occurrence
of the loss.
In Bank of America NT & SA v. Philippine Racing Club,30 the Court ruled:
In the case at bar, petitioner cannot evade responsibility for the loss by attributing negligence on the part of respondent
because, even if we concur that the latter was indeed negligent in pre-signing blank checks, the former had the last clear
chance to avoid the loss. To reiterate, petitioner’s own operations manager admitted that they could have called up the
client for verification or confirmation before honoring the dubious checks. Verily, petitioner had the final opportunity to
avert the injury that befell the respondent. x x x Petitioner’s negligence has been undoubtedly established and, thus,
pursuant to Art. 1170 of the NCC, it must suffer the consequence of said negligence.
In the interest of fairness, however, we believe it is proper to consider respondent’s own negligence to mitigate
petitioner’s liability. Article 2179 of the Civil Code provides:
xxxx
Explaining this provision in Lambert v. Heirs of Ray Castillon, the Court held:
“The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should
not be entitled to recover damages in full but must bear the consequences of his own negligence. The defendant must
thus be held liable only for the damages actually caused by his negligence. xxx xxx xxx”
xxxx
Following established jurisprudential precedents, we believe the allocation of sixty percent (60%) of the actual damages
involved in this case (represented by the amount of the checks with legal interest) to petitioner is proper under the
premises. Respondent should, in light of its contributory negligence, bear forty percent (40%) of its own
loss.31 (Emphasis supplied)
In Philippine National Bank v. F.F. Cruz and Co., Inc.,32 the Court made a similar disposition, thus:
Given the foregoing, we find no reversible error in the findings of the appellate court that PNB was negligent in the
handling of FFCCI’s combo account, specifically, with respect to PNB’s failure to detect the forgeries in the subject
applications for manager’s check which could have prevented the loss. x x x PNB failed to meet the high standard of
diligence required by the circumstances to prevent the fraud. In Philippine Bank of Commerce v. Court of
Appeals and The Consolidated Bank & Trust Corporation v. Court of Appeals, where the bank’s negligence is the
proximate cause of the loss and the depositor is guilty of contributory negligence, we allocated the damages between
the bank and the depositor on a 60-40 ratio. We apply the same ruling in this case considering that, as shown above,
PNB’s negligence is the proximate cause of the loss while the issue as to FFCCI’s contributory negligence has been
settled with finality in G.R. No. 173278. Thus, the appellate court properly adjudged PNB to bear the greater part of the
loss consistent with these rulings.33
“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.” 34 Admittedly,
petitioner’s acceptance of the subject check for deposit despite the one year postdate written on its face was a clear
violation of established banking regulations and practices. In such instances, payment should be refused by the drawee
bank and returned through the PCHC within the 24-hour reglementary period. As aptly observed by the CA, petitioner’s
failure to comply with this basic policy regarding post-dated checks was “a telling sign of its lack of due diligence in
handling checks coursed through it.”35
It bears stressing that “the diligence required of banks is more than that of a Roman pater familias or a good father of a
family. The highest degree of diligence is expected,” 36 considering the nature of the banking business that is imbued with
public interest. While it is true that respondent’s liability for its negligent clearing of the check is greater, petitioner
cannot take lightly its own violation of the long-standing rule against encashment of post-dated checks and the injurious
consequences of allowing such checks into the clearing system.
Petitioner repeatedly harps on respondent’s transgression of clearing house rules when the latter resorted to direct
presentment way beyond the reglementary period but glosses over its own negligent act that clearly fell short of the
conduct expected of it as a collecting bank. Petitioner must bear the consequences of its omission to exercise
extraordinary diligence in scrutinizing checks presented by its depositors.
Assessing the facts and in the light of the cited precedents, the Court thus finds no error committed by the CA in
allocating the resulting loss from the wrongful encashment of the subject check on a 60-40 ratio.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated March 19, 2009 of the Court of Appeals
in CA-G.R. SP No. 97604 is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. L-3422 June 13, 1952
HIDALGO ENTERPRISES, INC., petitioner,
vs.
GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents.
This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay
Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario.
It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City of San Pablo,
Laguna, in whose premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine.
While the factory compound was surrounded with fence, the tanks themselves were not provided with any kind of fence
or top covers. The edges of the tanks were barely a foot high from the surface of the ground. Through the wide gate
entrance, which is continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one
could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16,
1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his
age entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, Mario
sank to the bottom of the tank, only to be fished out later, already a cadaver, having been died of "asphyxia secondary
to drowning."
The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an
attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accidents to persons entering
its premises. It applied the doctrine of attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs.
Manila Electric 16 Phil., 8.
The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children
from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is
technically a trespasser in the premises. (See 65 C.J.S., p. 455.)
The principle reason for the doctrine is that the condition or appliance in question although its danger is apparent to
those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this
attractiveness is an implied invitation to such children (65 C.J.S., p. 458).
Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little children in play? In other
words is the body of water an attractive nuisance?
The great majority of American decisions say no.
The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the
absence of some unusual condition or artificial feature other than the mere water and its location.
There are numerous cases in which the attractive nuisance doctrine has not been held not to be applicable to
ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer
pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana,
Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)
In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in
1950, whereas its decision was promulgated on September 30, 1949.
The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly
explained by the Indiana Appellate Court as follows:
Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger
of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the
danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating
the work of nature without adding any new danger, . . . (he) is not liable because of having created an "attractive
nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.
Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken
reasonable precautions becomes immaterial. And the other issue submitted by petitioner — that the parents of the boy
were guilty of contributory negligence precluding recovery, because they left for Manila on that unlucky day leaving
their son under the care of no responsible individual — needs no further discussion. The appealed decision is reversed
and the Hidalgo Enterprises, Inc. is absolved from liability. No costs.

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G.R. No.

L-10126 October 22, 1957

The records disclose the following facts of the case.

"TO WHOM IT MAY CONCERN:

The motion was denied. Hence, this petition.

We look into the nature of tetanus —

PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and BEN SAGA, Petitioners,

Nature of the Petition

The Antecedent Facts

The Ruling of the Trial Court

1) P50,000.00, as indemnity for the death of Reynaldo Vizcara;

2) P35,000.00, for funeral expenses;

4) P40,000.00 for wake/interment expenses;

6) P200,000.00 as moral damages;

7) P100,000.00 as exemplary damages; and

8) P20,000.00 for Attorney’s fees.

1) P50,000.00, as indemnity for the death of Cresencio Vizcara;

2) P200,000.00 as moral damages;

3) P100,000.00 as exemplary damages; and

4) P20,000.00 for Attorney’s fees.

1) P50,000.00 as indemnity for the death of Samuel Vizcara;

2) P200,000.00 as moral damages;

3) P100,000.00 as exemplary damages; and

4) P20,000.00 for Attorney’s fees.

1) P50,000.00 as indemnity for the death of Crispin Natividad;

2) P200,000.00 as moral damages;

3) P100,000.00 as exemplary damages; and

4) P20,000.00 for Attorney’s fees.

1) P9,870.00 as reimbursement for his actual expenses;

2) P50,000.00 as moral damages;

3) P25,000.00 as exemplary damages; and

4) P10,000.00 for Attorney’s fees.

1) P63,427.00 as reimbursement for his actual expenses;

2) P50,000.00 as moral damages;

3) P25,000.00 as exemplary damages; and

4) P10,000.00 for Attorney’s fees.

The Ruling of the CA

This Court’s Ruling

The petition lacks merit.

The petitioners’ negligence was the proximate cause of the accident.

The doctrine of last clear chance is not applicable.

The facts are as follows:

1. P900,000.00 as Moral Damages;

We find no merit on this instant petition.

Indeed, the testimony of Mary Ann herself on cross-examination is telling. Thus:

Q. Now did you wait for the mascots to make a reply?

Q. Did he make a reply?

Q. Did you see his eyes looking at you?

Q. Did you see the hands inside the costume?

Q: He cannot stand on his own?

Q: He cannot walk on his own at that time?

Undisputed facts appearing of record are:

Costs against petitioner.

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

We quote the dispositive portion of the assailed decision, 13 thus:

3. P100,000.00 as moral and exemplary damages;

4. P20,000.00 in the concept of attorney’s fees; and