THIRD DIVISION Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of

which the trial fiscal moved for the dismissal of the case against petitioner during the resumption
of hearing on September 7, 1972. The grounds cited therefor were lack of interest on the part of
G.R. No. L-44264 September 19, 1988
the complaining witness to prosecute the case as evidenced by an affidavit of desistance
submitted to the trial court and lack of eyewitness to sustain the charge.
HEDY GAN y YU, petitioner,
vs.
The motion to dismiss filed by the fiscal was never resolved. The Court instead ordered the
THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE
prosecution to present its evidence. After the prosecution rested its case, the petitioner filed a
PHILIPPINES, respondents.
motion to dismiss the case on the ground of insufficiency of evidence.

Pacis, Baluyot, Reyes & De Leon for petitioner.

On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond
reasonable doubt of the of- offense charged.
The Solicitor General for respondents.
Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, 1976, the
Court of Appeals rendered a decision, the dispositive portion of which reads as follows:

FERNAN, C.J.:
Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in
Criminal Case No. 10201 of the then Court of First Instance of Manila, Branch XXII presided by
Judge Federico C. Alikpala. She was sentenced to an indeterminate penalty of four (4) months
and one (1) day of arresto mayor as minimum and two (2) years, four (4) months and one (1)
day of prision correccional as maximum and was made to indemnify the heirs of the victim the
sum of P12,000.00 without any subsidiary imprisonment in case of insolvency and to pay the
costs. On appeal, the trial court's decision was modified and petitioner was convicted only of
Homicide thru Simple Imprudence. Still unsatisfied with the decision of the Court of
Appeals,1 petitioner has come to this Court for a complete reversal of the judgment below.
Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable
doubt of the crime of homicide thru simple imprudence and, pursuant to
paragraph 2, Article 365 of the Revised Penal Code, she is hereby
sentenced to the indeterminate penalty of three (3) months and eleven (11)
days of arresto mayor and to indemnify the heirs of Isidoro Casino in the
sum of Twelve Thousand Pesos (Pl2,000.00) without, however, any
subsidiary imprisonment in case of insolvency, and to pay the costs. 3
Petitioner now appeals to this Court on the following assignments of errors:
I

The facts of the case as found by the appellate court are as follows:
The Court of Appeals erred in holding that when the petitioner saw a car
travelling directly towards her, she should have stepped on the brakes
In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan immediately or in swerving her vehicle to the right should have also stepped
was driving a Toyota car along North Bay Boulevard, Tondo, Manila. While on the brakes or lessened her speed, to avoid the death of a pedestrian.
in front of house no. 694 of North Bay Boulevard, there were two vehicles, a
truck and a jeepney parked on one side of the road, one following the other
II
about two to three meters from each other. As the car driven by the accused
approached the place where the two vehicles were parked, there was a
vehicle coming from the opposite direction, followed by another which tried The Court of Appeals erred in convicting the petitioner of the crime of
to overtake and bypass the one in front of it and thereby encroached the Homicide thru Simple Imprudence.
lane of the car driven by the accused. To avoid a head-on collision with the
oncoming vehicle, the defendant swerved to the right and as a
III
consequence, the front bumper of the Toyota Crown Sedan hit an old man
who was about to cross the boulevard from south to north, pinning him
against the rear of the parked jeepney. The force of the impact caused the The Court of Appeals erred in adjudging the petitioner liable to indemnify the
parked jeepney to move forward hitting the rear of the parts truck ahead of deceased in the sum of P12,000.00.4
it. The pedestrian was injured, the Toyota Sedan was damaged on its front,
the jeep suffered damages on its rear and front paints, and the truck
We reverse.
sustained scratches at the wooden portion of its rear. The body of the old
man who was later Identified as Isidoro Casino was immediately brought to
the Jose Reyes Memorial Hospital but was (pronounced) dead on arrival. 2 The test for determining whether or not a person is negligent in doing an act whereby injury or
damage results to the person or property of another is this: Would a prudent man in the position
An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the of the person to whom negligence is attributed foresee harm to the person injured as a
above incident. She entered a plea of not guilty upon arraignment and the case was set for trial. reasonable consequence of the course about to be pursued? If so, the law imposes the duty oil
the doer to take precaution against its mischievous results and the failure to do so constitutes
negligence. 5
A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who
suddenly finds himself in a place of danger, and is required to act without time to consider the
best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he
fails to adopt what subsequently and upon reflection may appear to have been a better method,
unless the emergency in which he finds himself is brought about by his own negligence." 6
WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime
of Homicide thru Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity
awarded by the appellate court to the heirs of the victim.
SO ORDERED.

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

The appellate court in finding the petitioner guilty said:

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

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

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

And masasabi ko lang ho umiwas ho ako sa isang sasakyan

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

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

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

We further set aside the award of damages to the heirs of the victim, who by executing a release
of the claim due them, had effectively and clearly waived their right thereto.
 THIRD DIVISION
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-
G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision
dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners'
complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance
(now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh
Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo,"
and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo,"
respectively, and granted the private respondents' counterclaim for moral damages, attorney's
fees and litigation expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a vehicular
accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused
physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh
McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh
McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while
petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and
children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the
other hand, private respondents are the owners of the cargo truck which figured in the mishap; a
certain Ruben Galang was the driver of the truck at the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along
MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision
took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines
'76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing
Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose
Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee,
Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one
and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc
who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated
at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred (200)
cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its
way to Angeles City from San Fernando. When the northbound car was about (10) meters away
from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the
road and into the lane of the car. The boys were moving back and forth, unsure of whether to
cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to
the left and entered the lane of the truck; he then switched on the headlights of the car, applied
the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided
with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the
said bridge.
The incident was immediately reported to the police station in Angeles City; consequently, a
team of police officers was forthwith dispatched to conduct an on the spot investigation. In the
sketch 1 prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps"
long and fourteen (14) "footsteps" wide — seven (7) "footsteps" from the center line to the inner
edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of
concrete with soft shoulders and concrete railings on both sides about three (3) feet high.
The sketch of the investigating officer discloses that the right rear portion of the cargo truck was
two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching
the center line of the bridge, with the smashed front side of the car resting on its front bumper.
The truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the
car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right
front tire of the truck measured nine (9) "footsteps", while skid marks produced by the left front
tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid
marks.
In his statement to the investigating police officers immediately after the accident, Galang
admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed
on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to
Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No.
68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00
as moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses,
P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus
attorney's fees. 3 In the second case, petitioners in G.R. No. 68102 prayed for the following: (a)
in connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00
for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as
moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages;
(b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered,
the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for
loss of earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the
complaint; and (c) with respect to George McKee, Jr., in connection with the serious physical
injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages
and the following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable
to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and
miscellaneous expenses amounting to P5,000.00. They also sought an award of attorney's fees
amounting to 25% of the total award plus traveling and hotel expenses, with costs. 4
On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless
Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property"
was filed with the trial court. It was docketed as Criminal Case No. 3751 and was raffled to
Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it
was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben
Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00
as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business
losses. 6 In Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of
pendency of another action (Civil Case No. 4477) and failure to implead an indispensable party,
Ruben Galang, the truck driver; they also filed a motion to consolidate the case with Civil Case
No. 4477 pending before Branch III of the same court, which was opposed by the
plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge Ignacio
Capulong. Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they
alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by
Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed
observing all traffic rules and regulations applicable under the circumstances then prevailing;" in
their counterclaim, they prayed for an award of damages as may be determined by the court
after due hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of
litigation.
Petitioners filed their Answers to the Counterclaims in both cases.
To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a
motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No.
3751, which private respondents opposed and which the court denied. 9 Petitioners
subsequently moved to reconsider the order denying the motion for consolidation, 10 which
Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case No.
4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided over by
Judge Mario Castañeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuñag,
Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and
offered several documentary exhibits. Upon the other hand, private respondents presented as
witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12
In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia,
Pfc. Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector,
Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan
and Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the
defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman
Dayrit, and offered documentary exhibits. 14
On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in
the aforesaid criminal case. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered
finding the accused Ruben Galang guilty beyond reasonable doubt of the
crime charged in the information and after applying the provisions of Article
365 of the Revised Penal Code and indeterminate sentence law, this Court,
imposes upon said accused Ruben Galang the penalty of six (6) months
of arresto mayor as minimum to two (2) years, four (4) months and one (1)
day of prision correccional as maximum; the accused is further sentenced to
pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as
indemnity for her death; to reimburse the heirs of Loida Bondoc the amount
of P2,000.00 representing the funeral expenses; to pay the heirs of Loida
Bondoc the amount of P20,000.00 representing her loss of income; to
indemnify and pay the heirs of the deceased Jose Koh the value of the car
in the amount of P53,910.95, and to pay the costs. 15
The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel
for petitioners filed with Branch III of the court — where the two (2) civil cases were pending — a
manifestation to that effect and attached thereto a copy of the decision. 16
Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on 12
November 1980 and awarded the private respondents moral damages, exemplary damages and
attorney's fees. 17 The dispositive portion of the said decision reads as follows:
WHEREFORE, finding the preponderance of evidence to be in favor of the
defendants and against the plaintiffs, these cases are hereby ordered
DISMISSED with costs against the plaintiffs. The defendants had proven
their counter-claim, thru evidences (sic) presented and unrebutted. Hence,
they are hereby awarded moral and exemplary damages in the amount of
P100,000.00 plus attorney's fee of P15,000.00 and litigation expenses for
(sic) P2,000.00. The actual damages claimed for (sic) by the defendants is
(sic) hereby dismissing for lack of proof to that effect (sic). 18
A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and
was received on 2 December 1980. 19
Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The
appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third
Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12
November 1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No.
69041-R and C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases
Division.
On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-
CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads:
DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming
pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad
ng gugol ng paghahabol.
A motion for reconsideration of the decision was denied by the respondent Court in
its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with
this Court; said petition was subsequently denied. A motion for its reconsideration was denied
with finality in the Resolution of 20 April 1983. 24
On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, L-1)
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
portion of which reads:
In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No.
WHEREFORE, the decision appealed from it hereby reversed and set aside 4477 and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.
and another one is rendered, ordering defendants-appellees to pay
plaintiffs-appellants as follows:
No pronouncement as to costs.

For the death of Jose Koh:

SO ORDERED. 26

P 50,000.00 as moral damages

The decision is anchored principally on the respondent Court's findings that it was Ruben
P 12,000.00 as death indemnity
Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
further said that the law presumes negligence on the part of the defendants (private
P 4,000.00 expenses for holding a wake (p. 9, tsn April
respondents), as employers of Galang, in the selection and supervision of the latter; it was
19, 1979)
further asserted that these defendants did not allege in their Answers the defense of having
P 950.00 for the casket (Exh. M)
exercised the diligence of a good father of a family in selecting and supervising the said
P 375.00 for the vault services (Exhs. V and V-1)
employee.27 This conclusion of reckless imprudence is based on the following findings of fact:

For the death of Kim Koh McKee:

In the face of these diametrically opposed judicial positions, the
determinative issue in this appeal is posited in the fourth assigned error as
P 50,000.00 as moral damages follows:
P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
IV
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE
TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS
For the physical injuries suffered by George Koh McKee:
HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.

P 25,000.00 as moral damages

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:
P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1
and Q What happened after that, as you approached the
D-2) bridge?
P 1,555.00 paid to St. Francis Medical Center (Exhs. B
and B-1)
A When we were approaching the bridge, two (2) boys
tried to cross the right lane on the right side of the
For the physical injuries suffered by Araceli Koh McKee: highway going to San Fernando. My father, who is (sic)
the driver of the car tried to avoid the two (2) boys who
were crossing, he blew his horn and swerved to the left
P 25,000.00 as moral damages
to avoid hitting the two (2) boys. We noticed the truck,
P 1,055.00 paid to St. Francis Medical Center (Exhs. G
he switched on the headlights to warn the truck driver,
and
to slow down to give us the right of way to come back to
G-1)
our right lane.
P 75.00 paid to St. Francis Medical Center (Exhs. G-2
and G-3)
P 428.00 to Carmelite General Hospital (Exh. F) Q Did the truck slow down?
P 114.20 to Muñoz Clinic (Exh. MM)
A No, sir, it did not, just (sic) continued on its way.
For the physical injuries suffered by Christopher Koh McKee:
Q What happened after that?
P 10,000.00 as moral damages
P 1,231.10 to St. Francis Medical Center (Exhs. L and
A After avoiding the two (2) boys, the car tried to go
back to the right lane since the truck is (sic) coming, my
 father stepped on the brakes and all what (sic) I heard
is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22,
1977); or (Exhibit "O" in these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the
herein accused, Ruben Galang did not reduce its speed
before the actual impact of collision (sic) as you
narrated in this Exhibit "1," how did you know (sic)?
A It just kept on coming, sir. If only he reduced his
speed, we could have got (sic) back to our right lane on
side (sic) of the highway, sir. (tsn. pp. 33-34 July 22,
1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31,
Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:
1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that
the truck stopped only when it had already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing in the criminal
case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation witness because
he was one of the first to arrive at the scene of the accident. As a matter of
fact, he brought one of the injured passengers to the hospital.
We are not prepared to accord faith and credit to defendants' witnesses,
Zenaida Soliman, a passenger of the truck, and Roman Dayrit, who
supposedly lived across the street.
Regarding Soliman, experience has shown that in the ordinary course of
events people usually take the side of the person with whom they are
associated at the time of the accident, because, as a general rule, they do
not wish to be identified with the person who was at fault. Thus an imaginary
bond is unconsciously created among the several persons within the same
group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that he is an
accommodation witness. He did not go to the succor of the injured persons.
He said he wanted to call the police authorities about the mishap, but his
phone had no dial tone. Be this (sic) as it may, the trial court in the criminal
case acted correctly in refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang, does not include the claim that Galang
stopped his truck at a safe distance from the car, according to plaintiffs (p.
25, Appellants' Brief). This contention of appellants was completely
passed sub-silencio or was not refuted by appellees in their brief. Exhibit 2
is one of the exhibits not included in the record. According to the Table of
Contents submitted by the court below, said Exhibit 2 was not submitted by
defendants-appellees. In this light, it is not far-fetched to surmise that
Galang's claim that he stopped was an eleventh-hour desperate attempt to
exculpate himself from imprisonment and damages.
3. Galang divulged that he stopped after seeing the car about 10 meters
away:
ATTY. SOTTO:
Q Do I understand from your testimony that inspite of
the fact that you admitted that the road is straight and
you may be able to (sic) see 500-1000 meters away
from you any vehicle, you first saw that car only about
ten (10) meters away from you for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters
away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under your
oath that you have (sic) not noticed it before that ten
(10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16,
Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that Galang
stopped only because of the impact. At ten (10) meters away, with the truck
running at 30 miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25,
Appellants' brief), it is well-nigh impossible to avoid a collision on a bridge.
5. Galang's truck stopped because of the collision, and not because he
waited for Jose Koh to return to his proper lane. The police investigator, Pfc.
Fernando L. Nuñag, stated that he found skid marks under the truck but
there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3,
1978). The presence of skid marks show (sic) that the truck was speeding.
Since the skid marks were found under the truck and none were found at
the rear of the truck, the reasonable conclusion is that the skid marks under
the truck were caused by the truck's front wheels when the trucks (sic)
suddenly stopped seconds before the mishap in an endeavor to avoid the
same. But, as aforesaid, Galang saw the car at barely 10 meters away, a
very short distance to avoid a collision, and in his futile endeavor to avoid
the collision he abruptly stepped on his brakes but the smashup happened
just the same.
 For the inattentiveness or reckless imprudence of Galang, the law presumes
negligence on the part of the defendants in the selection of their driver or in
the supervision over him. Appellees did not allege such defense of having
exercised the duties of a good father of a family in the selection and
supervision of their employees in their answers. They did not even adduce
evidence that they did in fact have methods of selection and programs of
supervision. The inattentiveness or negligence of Galang was the proximate
cause of the mishap. If Galang's attention was on the highway, he would
have sighted the car earlier or at a very safe distance than (sic) 10 meters.
He proceeded to cross the bridge, and tried to stop when a collision was
already inevitable, because at the time that he entered the bridge his
attention was not riveted to the road in front of him.
On the question of damages, the claims of appellants were amply proven,
but the items must be reduced. 28
A motion for reconsideration alleging improper appreciation of the facts was subsequently filed
by private respondents on the basis of which the respondent Court, in its Resolution of 3 April
1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial
court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by
the respondent Court on 4 July 1984.30
Hence, this petition.
Petitioners allege that respondent Court:
I
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT
TOTALLY REVERSED ITS DECISION BY MERELY BASING IT FROM
(sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE
PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND
CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE PROXIMATE
CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED
THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS;
THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A
and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON
SPECULATIONS, CONJECTURES AND WITHOUT SURE FOUNDATION
IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN
EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY THIS
HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT
CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL
CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE
ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND
MADE A MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS
INCUMBENT UPON THE PLAINTIFFS-APPELLANTS (APPELLEES
WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR
ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT
WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED
GRAVE ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH
IS CLEARLY INAPPLICABLE TO THESE CASES.
V
. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS
DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT
WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE
EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE
CONTRARY TO THE ADMITTED FACTS AND JUDICIAL ADMISSIONS
MADE BY THE PRIVATE RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF
DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES
TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT
SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS
NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS
HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF
DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET
ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH
IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND
JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31
In the Resolution of 12 September 1984, We required private respondents to Comment on the
petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this
Court then gave due course to the instant petitions and required petitioners to file their
Brief, 35 which they accordingly complied with.
There is merit in the petition. Before We take on the main task of dissecting the arguments and
counter-arguments, some observations on the procedural vicissitudes of these cases are in
order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-
delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal
Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for
joint trial in Branch III of the trial court. The records do not indicate any attempt on the part of the
parties, and it may therefore be reasonably concluded that none was made, to consolidate
Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed,
and understandably so, since by then no specific provision of law or ruling of this Court
expressly allowed such a consolidation, that an independent civil action, authorized under Article
33 in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be
consolidated with the criminal case. Indeed, such consolidation could have been farthest from
their minds as Article 33 itself expressly provides that the "civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence."
Be that as it may, there was then no legal impediment against such consolidation. Section 1,
Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial
court, or in short, attain justice with the least expense to the parties litigants, 36 would have easily
sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two
(2) judges appreciating, according to their respective orientation, perception and perhaps even
prejudice, the same facts differently, and thereafter rendering conflicting decisions. Such was
what happened in this case. It should not, hopefully, happen anymore. In the recent case
of Cojuangco vs. Court or Appeals, 37 this Court held that the present provisions of Rule 111 of
the Revised Rules of Court allow a consolidation of an independent civil action for the recovery
of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal
action subject, however, to the condition that no final judgment has been rendered in that
criminal case.
Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of
reckless imprudence, although already final by virtue of the denial by no less than this Court of
his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has
no relevance or importance to this case.
As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in
a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under
the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L.
Reyes, "in the case of independent civil actions under the new Civil Code, the result of the
criminal case, whether acquittal or conviction, would be entirely irrelevant to the civil
action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated:
. . . It seems perfectly reasonable to conclude that the civil actions
mentioned in Article 33, permitted in the same manner to be filed separately
from the criminal case, may proceed similarly regardless of the result of the
criminal case.
Indeed, when the law has allowed a civil case related to a criminal case, to
be filed separately and to proceed independently even during the pendency
of the latter case, the intention is patent to make the court's disposition of
the criminal case of no effect whatsoever on the separate civil case. This
must be so because the offenses specified in Article 33 are of such a
nature, unlike other offenses not mentioned, that they may be made the
subject of a separate civil action because of the distinct separability of their
respective juridical cause or basis of action . . . .
What remains to be the most important consideration as to why the decision in the criminal case
should not be considered in this appeal is the fact that private respondents were not parties
therein. It would have been entirely different if the petitioners' cause of action was for damages
arising from a delict, in which case private respondents' liability could only be subsidiary
pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion, the
judgment of conviction in the criminal case against Galang would have been conclusive in the
civil cases for the subsidiary liability of the private respondents. 41
And now to the merits of the petition.
It is readily apparent from the pleadings that the principal issue raised in this petition is whether
or not respondent Court's findings in its challenged resolution are supported by evidence or are
based on mere speculations, conjectures and presumptions.
The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised.
The resolution of factual issues is the function of the lower courts whose findings on these
matters are received with respect and are, as a rule, binding on this Court. 42
The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and
the Court of Appeals may be set aside when such findings are not supported by the evidence or
when the trial court failed to consider the material facts which would have led to a conclusion
different from what was stated in its judgment. 43 The same is true where the appellate court's
conclusions are grounded entirely on conjectures, speculations and surmises 44 or where the
conclusions of the lower courts are based on a misapprehension of facts. 45
It is at once obvious to this Court that the instant case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are based on an misapprehension of
facts and the inferences made therefrom are manifestly mistaken. The respondent Court's
decision of 29 November 1983 makes the correct findings of fact.
In the assailed resolution, the respondent Court held that the fact that the car improperly invaded
the lane of the truck and that the collision occurred in said lane gave rise to the presumption that
the driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the
appellate court immediately concluded that it was Jose Koh's negligence that was the immediate
and proximate cause of the collision. This is an unwarranted deduction as the evidence for the
petitioners convincingly shows that the car swerved into the truck's lane because as it
approached the southern end of the bridge, two (2) boys darted across the road from the right
sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you approached the
bridge?
A When we were approaching the bridge, two (2) boys
tried to cross the right lane on the right side of the
highway going to San Fernando. My father, who is (sic)
the driver of the car tried to avoid the two (2) boys who
were crossing, he blew his horn and swerved to the left
to avoid hitting the two (2) boys. We noticed the truck,
he switched on the headlights to warn the truck driver,
to slow down to give us the right of way to come back to
our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go
back to the right lane since the truck is (sic) coming, my
 father stepped on the brakes and all what (sic) I heard
is the sound of impact (sic), sir. 46
Her credibility and testimony remained intact even during cross examination. Jose Koh's entry
into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a
greater peril — death or injury to the two (2) boys. Such act can hardly be classified as
negligent.
Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate
Court, 47 thus:
. . . Negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and
reasonable man would not do (Black's Law Dictionary, Fifth Edition, 930), or
as Judge Cooley defines it, "(T)he failure to observe for the protection of the
interests of another person, that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such other person suffers
injury." (Cooley on Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago
but still a sound rule, (W)e held:
The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that (reasonable care and caution
which an ordinarily prudent person would have used in
the same situation?) If not, then he is guilty of
negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of
the discreet paterfamiliasof the Roman
law. . . .
48
In Corliss vs. Manila Railroad Company, We held:
. . . Negligence is want of the care required by the circumstances. It is a
relative or comparative, not an absolute, term and its application depends
upon the situation of the parties and the degree of care and vigilance which
the circumstances reasonably require. Where the danger is great, a high
degree of care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances. (citing Ahern v. Oregon Telephone
Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts obtaining in this
case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and
ordinary prudent man would have tried to avoid running over the two boys by swerving the car
away from where they were even if this would mean entering the opposite lane. Avoiding such
immediate peril would be the natural course to take particularly where the vehicle in the opposite
lane would be several meters away and could very well slow down, move to the side of the road
and give way to the oncoming car. Moreover, under what is known as the emergency rule, "one
who suddenly finds himself in a place of danger, and is required to act without time to consider
the best means that may be adopted to avoid the impending danger, is not guilty of negligence,
if he fails to adopt what subsequently and upon reflection may appear to have been a better
method, unless the emergency in which he finds himself is brought about by his own
negligence." 49
Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose
Koh adopted the best means possible in the given situation to avoid hitting them. Applying the
above test, therefore, it is clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his
negligence was the proximate cause of the collision. Proximate cause has been defined as:
. . . that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result
would not have occurred. And more comprehensively, the proximate legal
cause is that acting first and producing the injury, either immediately or by
setting other events in motion, all constituting a natural and continuous
chain of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as
a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an
ordinary prudent and intelligent person, have reasonable ground to expect
at the moment of his act or default that an injury to some person might
probably result therefrom. 50
Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent,
was the initial act in the chain of events, it cannot be said that the same caused the eventual
injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act
of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane
of the truck would not have resulted in the collision had the latter heeded the emergency signals
given by the former to slow down and give the car an opportunity to go back into its proper lane.
Instead of slowing down and swerving to the far right of the road, which was the proper
precautionary measure under the given circumstances, the truck driver continued at full speed
towards the car. The truck driver's negligence becomes more apparent in view of the fact that
the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters,
in width. This would mean that both car and truck could pass side by side with a clearance of
3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could have partially
accommodated the truck. Any reasonable man finding himself in the given situation would have
tried to avoid the car instead of meeting it head-on.
The truck driver's negligence is apparent in the records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed
by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a
person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any
traffic regulation. We cannot give credence to private respondents' claim that there was an error
in the translation by the investigating officer of the truck driver's response in Pampango as to
whether the speed cited was in kilometers per hour or miles per hour. The law presumes that
official duty has been regularly performed; 53 unless there is proof to the contrary, this
presumption holds. In the instant case, private respondents' claim is based on mere conjecture.
The truck driver's negligence was likewise duly established through the earlier quoted testimony
of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio
Tanhueco, an impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
 xxx xxx xxx
Q Mrs. how did you know that the truck driven by the
herein accused, Ruben Galang did not reduce its speed
before the actual impact of collision as you narrated in
this Exhibit "1," how did you know?
A It just kept on coming, sir. If only he reduced his
speed, we could have got (sic) back to our right lane on
side (sic) of the highway, sir. (tsn, pp. 33-34, July 22,
1977) or (Exhibit; "O" in these Civil Cases) (pp. 30-31,
Appellants' Brief)54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you know
what happened?
A I saw the truck and a car collided (sic), sir, and I went
to the place to help the victims. (tsn. 28, April 19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of the
impact, will you tell us if the said truck ever stopped?
A I saw it stopped (sic) when it has (sic) already
collided with the car and it was already motionless. (tsn.
31, April 19, 1979; Emphasis Supplied). (p. 27,
Appellants' Brief). 55
Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the collision which was the proximate cause of
the resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here.
Last clear chance is a doctrine in the law of torts which states that the contributory negligence of
the party injured will not defeat the claim for damages if it is shown that the defendant might, by
the exercise of reasonable care and prudence, have avoided the consequences of the
negligence of the injured party. In such cases, the person who had the last clear chance to avoid
the mishap is considered in law solely responsible for the consequences thereof. 56
In Bustamante vs. Court of Appeals, 57 We held:
The respondent court adopted the doctrine of "last clear chance." The
doctrine, stated broadly, is that the negligence of the plaintiff does not
preclude a recovery for the negligence of the defendant where it appears
that the defendant, by exercising reasonable care and prudence, might have
avoided injurious consequences to the plaintiff notwithstanding the plaintiff's
negligence. In other words, the doctrine of last clear chance means that
even though a person's own acts may have placed him in a position of peril,
and an injury results, the injured person is entitled to recovery (sic). As the
doctrine is usually stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his
opponent or that of a third person imputed to the opponent is considered in
law solely responsible for the consequences of the accident. (Sangco, Torts
and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held
liable to a negligent plaintiff, or even to a plaintiff who has been grossly
negligent in placing himself in peril, if he, aware of the plaintiff's peril, or
according to some authorities, should have been aware of it in the
reasonable exercise of due care, had in fact an opportunity later than that of
the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).
58
In Pantranco North Express, Inc., vs. Baesa, We ruled:
The doctrine of last clear chance was defined by this Court in the case of
Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that
the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it
appears that the latter, by exercising reasonable care
and prudence, might have avoided injurious
consequences to claimant notwithstanding his
negligence.
The doctrine applies only in a situation where the plaintiff was guilty of prior
or antecedent negligence but the defendant, who had the last fair chance to
avoid the impending harm and failed to do so, is made liable for all the
consequences of the accident notwithstanding the prior negligence of the
plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber and
Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de
Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent negligence
of the defendant in failing to exercise ordinary care to avoid injury to plaintiff
becomes the immediate or proximate cause of the accident which
intervenes between the accident and the more remote negligence of the
plaintiff, thus making the defendant liable to the plaintiff [Picart v.
Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of
making a defendant liable to a plaintiff who was guilty of prior or antecedent
negligence, although it may also be raised as a defense to defeat claim (sic)
for damages.
Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck
driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the
proximate cause of the collision. As employers of the truck driver, the private respondents are,
under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The
presumption that they are negligent flows from the negligence of their employee. That
presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible defense is
that they exercised all the diligence of a good father of a family to prevent the damage. Article
2180 reads as follows:

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

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

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

Costs against private respondents.

SO ORDERED.
 SECOND DIVISION common carrier failed to exercise the diligence required under the Civil Code. The appellate
court dismissed the third-party complaint against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET

ASIDE, and another one is entered ordering defendant-appellee Vicente
G.R. No. 122039 May 31, 2000
Calalas to pay plaintiff-appellant:

VICENTE CALALAS, petitioner,

(1) P50,000.00 as actual and compensatory damages;
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.
(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorney's fees; and

MENDOZA, J.: (4) P1,000.00 as expenses of litigation; and

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31, (5) to pay the costs.
1991, reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City,
and awarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in an
SO ORDERED.
action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga,
then a college freshman majoring in Physical Education at the Siliman University, took a
passenger jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled
to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a
wooden stool at the back of the door at the rear end of the vehicle.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the
negligence of Verena was the proximate cause of the accident negates his liability and that to
rule otherwise would be to make the common carrier an insurer of the safety of its passengers.
He contends that the bumping of the jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages to Sunga on the ground that it is not
supported by evidence.
The petition has no merit.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the
As she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just
owner of the truck liable for quasi-delict ignores the fact that she was never a party to that case
as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva
and, therefore, the principle of res judicata does not apply.
bumped the left rear portion of the jeepney. As a result, Sunga was injured. She sustained a
fracture of the "distal third of the left tibia-fibula with severe necrosis of the underlying skin."
Closed reduction of the fracture, long leg circular casting, and case wedging were done under Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil
sedation. Her confinement in the hospital lasted from August 23 to September 7, 1989. Her Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the
attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on damage caused to petitioner's jeepney. On the other hand, the issue in this case is whether
a cast for a period of three months and would have to ambulate in crutches during said period. petitioner is liable on his contract of carriage. The first, quasi-delict, also known as culpa
aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor.
The second, breach of contract or culpa contractual, is premised upon the negligence in the
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of
performance of a contractual obligation.
the contract of carriage by the former in failing to exercise the diligence required of him as a
common carrier. Calalas, on the other hand, filed a third-party complaint against Francisco
Salva, the owner of the Isuzu truck. Consequently, in quasi-delict, the negligence or fault should be clearly established because it is
the basis of the action, whereas in breach of contract, the action can be prosecuted merely by
proving the existence of the contract and the fact that the obligor, in this case the common
The lower court rendered judgment against Salva as third-party defendant and absolved Calalas
carrier, failed to transport his passenger safely to his destination. 2 In case of death or injuries to
of liability, holding that it was the driver of the Isuzu truck who was responsible for the accident.
passengers, Art. 1756 of the Civil Code provides that common carriers are presumed to have
It took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and
been at fault or to have acted negligently unless they prove that they observed extraordinary
Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena
diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the
jointly liable to Calalas for the damage to his jeepney.
common carrier the burden of proof.

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that
Sunga's cause of action was based on a contract of carriage, not quasi-delict, and that the
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva
and his driver Verena liable for the damage to petitioner's jeepney, should be binding on Sunga.
It is immaterial that the proximate cause of the collision between the jeepney and the truck was
the negligence of the truck driver. The doctrine of proximate cause is applicable only in actions
for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing
liability to a person where there is no relation between him and another party. In such a case,
the obligation is created by law itself. But, where there is a pre-existing contractual relation
between the parties, it is the parties themselves who create the obligation, and the function of
the law is merely to regulate the relation thus created. Insofar as contracts of carriage are
concerned, some aspects regulated by the Civil Code are those respecting the diligence
required of common carriers with regard to the safety of passengers as well as the presumption
of negligence in cases of death or injury to passengers. It provides:
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 1746, 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 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 by articles
1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence at once
arose, and it became the duty of petitioner to prove that he had to observe extraordinary
diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could
provide, using the utmost diligence of very cautious persons, with due regard for all the
circumstances" as required by Art. 1755? We do not think so. Several factors militate against
petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion
being exposed about two meters from the broad shoulders of the highway, and facing the middle
of the highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the
Land Transportation and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle in
such a manner as to obstruct or impede the passage of any vehicle, nor,
while discharging or taking on passengers or loading or unloading freight,
obstruct the free passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating
capacity of the jeepney, a violation of §32(a) of the same law. It provides:
Exceeding registered capacity. — No person operating any motor vehicle
shall allow more passengers or more freight or cargo in his vehicle than its
registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to
which the other passengers were exposed. Therefore, not only was petitioner unable to
overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but
also, the evidence shows he was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention that Sunga's taking an
"extension seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries
to the many victims of the tragedies in our seas should not be compensated merely because
those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is
also true of petitioner's contention that the jeepney being bumped while it was improperly parked
constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or which,
though foreseen, was inevitable.3 This requires that the following requirements be present: (a)
the cause of the breach is independent of the debtor's will; (b) the event is unforeseeable or
unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his obligation
in a normal manner, and (d) the debtor did not take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body
protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is excessive and
without basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college student
in that school year 1989-1990 at the Silliman University, majoring in
Physical Education. Because of the injury, she was not able to enroll in the
second semester of that school year. She testified that she had no more
intention of continuing with her schooling, because she could not walk and
decided not to pursue her degree, major in Physical Education "because of
my leg which has a defect already."
Plaintiff-appellant likewise testified that even while she was under
confinement, she cried in pain because of her injured left foot. As a result of
her injury, the Orthopedic Surgeon also certified that she has "residual
bowing of the fracture side." She likewise decided not to further pursue
Physical Education as her major subject, because "my left leg . . . has a
defect already."
Those are her physical pains and moral sufferings, the inevitable bedfellows
of the injuries that she suffered. Under Article 2219 of the Civil Code, she is
entitled to recover moral damages in the sum of P50,000.00, which is fair,
just and reasonable.
As a general rule, moral damages are not recoverable in actions for damages predicated on a
breach of contract for it is not one of the items enumerated under Art. 2219 of the Civil Code. 5 As
an exception, such damages are recoverable: (1) in cases in which the mishap results in the
death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and
(2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220. 6
In this case, there is no legal basis for awarding moral damages since there was no factual
finding by the appellate court that petitioner acted in bad faith in the performance of the contract
of carriage. Sunga's contention that petitioner's admission in open court that the driver of the
jeepney failed to assist her in going to a nearby hospital cannot be construed as an admission of
bad faith. The fact that it was the driver of the Isuzu truck who took her to the hospital does not
imply that petitioner was utterly indifferent to the plight of his injured passenger. If at all, it is
merely implied recognition by Verena that he was the one at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution,
dated September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral
damages is DELETED.

SO ORDERED.
 THIRD DIVISION
March 15, 2017
G.R. No. 164749
ROMULO ABROGAR and ERLINDA ABROGAR, Petitioners
vs
COSMOS BOTTLING COMPANY and INTERGAMES, INC., Respondents
DECISION
BERSAMIN, J.:
This case involves a claim for damages arising from the negligence causing the death of a
participant in an organized marathon bumped by a passenger jeepney on the route of the race.
The issues revolve on whether the organizer and the sponsor of the marathon were guilty of
negligence, and, if so, was their negligence the proximate cause of the death of the participant;
on whether the negligence of the driver of the passenger jeepney was an efficient intervening
cause; on whether the doctrine of assumption of risk was applicable to the fatality; and on
whether the heirs of the fatality can recover damages for loss of earning capacity of the latter
who, being then a minor, had no gainful employment.
The Case
By this appeal, the parents of the late Rommel Abrogar (Rommel), a marathon runner, seek the
review and reversal of the decision promulgated on March l 0, 2004,1 whereby the Court of
Appeals (CA) reversed and set aside the judgment rendered in their favor on May 10, 1991 by
the Regional Trial Court (RTC), Branch 83, in Quezon City2finding and declaring respondents
Cosmos Bottling Company (Cosmos), a domestic soft-drinks company whose products included
Pop Cola, and Intergames, Inc. (Intergames), also a domestic corporation organizing and
supervising the 1st Pop Cola Junior Marathon" held on June 15, 1980 in Quezon City, solidarily
liable for damages arising from the untimely death of Rommel, then a minor 18 years of
age,3 after being bumped by a recklessly driven passenger jeepney along the route of the
marathon.
Antecedents
The CA narrated the antecedents in the assailed judgment,4 viz.:
[T]o promote the sales of "Pop Cola", defendant Cosmos, jointly with Intergames, organized an
endurance running contest billed as the "1st Pop Cola Junior Marathon" scheduled to be held on
June 15, 1980. The organizers plotted a 10-kilometer course starting from the premises of the
Interim Batasang Pambansa (IBP for brevity), through public roads and streets, to end at the
Quezon Memorial Circle. Plaintiffs' son Rommel applied with the defendants to be allowed to
participate in the contest and after complying with defendants' requirements, his application was
accepted and he was given an official number. Consequently, on June 15, 1980 at the
designated time of the marathon, Rommel joined the other participants and ran the course
plotted by the defendants. As it turned out, the plaintiffs' (sic) further alleged, the defendants
failed to provide adequate safety and precautionary measures and to exercise the diligence
required of them by the nature of their undertaking, in that they failed to insulate and protect the
participants of the marathon from the vehicular and other dangers along the marathon route.
Rommel was bumped by a jeepney that was then running along the route of the marathon on
Don Mariano Marcos A venue (DMMA for brevity), and in spite of medical treatment given to him
at the Ospital ng Bagong Lipunan, he died later that same day due to severe head injuries.
On October 28, 1980, the petitioners sued the respondents in the then Court of First Instance of
Rizal (Quezon City) to recover various damages for the untimely death of Rommel (i.e., actual
and compensatory damages, loss of earning capacity, moral damages, exemplary damages,
attorney's fees and expenses oflitigation).5
Cosmos denied liability, insisting that it had not been the organizer of the marathon, but only its
sponsor; that its participation had been limited to providing financial assistance to
Intergames;6 that the financial assistance it had extended to Intergames, the sole organizer of
the marathon, had been in answer to the Government's call to the private sector to help promote
sports development and physical fitness;7 that the petitioners had no cause of action against it
because there was no privity of contract between the participants in the marathon and Cosmos;
and that it had nothing to do with the organization, operation and running of the event. 8
As counterclaim, Cosmos sought attorney's fees and expenses of litigation from the petitioners
for their being unwarrantedly included as a defendant in the case. It averred a cross-claim
against Intergames, stating that the latter had guaranteed to hold Cosmos "completely free and
harmless from any claim or action for liability for any injuries or bodily harm which may be
sustained by any of the entries in the '1st Pop Cola Junior Marathon' or for any damage to the
property or properties of third parties, which may likewise arise in the course of the race." 9 Thus,
Cosmos sought to hold Intergames solely liable should the claim of the petitioners prosper. 10
On its part, Intergames asserted that Rommel's death had been an accident exclusively caused
by the negligence of the jeepney driver; that it was not responsible for the accident; that as the
marathon organizer, it did not assume the responsibilities of an insurer of the safety of the
participants; that it nevertheless caused the participants to be covered with accident insurance,
but the petitioners refused to accept the proceeds thereof; 11 that there could be no cause of
action against it because the acceptance and approval of Rommel's application to join the
marathon had been conditioned on his waiver of all rights and causes of action arising from his
participation in the marathon;12 that it exercised due diligence in the conduct of the race that the
circumstances called for and was appropriate, it having availed of all its know-how and
expertise, including the adoption and implementation of all known and possible safety and
precautionary measures in order to protect the participants from injuries arising from vehicular
and other forms of accidents;13 and, accordingly, the complaint should be dismissed.
In their reply and answer to counterclaim, the petitioners averred that contrary to its claims,
Intergames did not provide adequate measures for the safety and protection of the race
participants, considering that motor vehicles were traversing the race route and the participants
were made to run along the flow of traffic, instead of against it; that Intergames did not provide
adequate traffic marshals to secure the safety and protection of the participants; 14that
Intergames could not limit its liability on the basis of the accident insurance policies it had
secured to cover the race participants; that the waiver signed by Rommel could not be a basis
for denying liability because the same was null and void for being contrary to law, morals,
customs and public policy;15 that their complaint sufficiently stated a cause of action because in
no way could they be held liable for attorney's fees, litigation expenses or any other relief due to
their having abided by the law and having acted honestly, fairly, in good faith by according to
Intergames its due, as demanded by the facts and circumstances.16
At the pre-trial held on April 12, 1981, the parties agreed that the principal issue was whether or
not Cosmos and lntergames were liable for the death of Rommel because of negligence in
conducting the marathon.17
 Judgment of the RTC
In its decision dated May 10, 1991,18 the RTC ruled as follows:
WHEREFORE, judgment is hereby rendered in favor of plaintiffs-spouses Romulo Abrogar and
Erlinda Abrogar and against defendants Cosmos Bottling Company, Inc. and Intergames, Inc.,
ordering both defendants, jointly and severally, to pay and deliver to the plaintiffs the amounts of
Twenty Eight Thousand Sixty One Pesos and Sixty Three Centavos (₱28,061.63) as actual
damages; One Hundred Thousand Pesos (₱100,000.00) as moral damages; Fifty Thousand
Pesos (₱50,000.00) as exemplary damages and Ten Percent (10%) of the total amount of One
Hundred Seventy Eight Thousand Sixty One Pesos and Sixty Three Centavos (₱178,061,63) or
Seventeen Thousand Eight Hundred Six Pesos and Sixteen Centavos (₱17,806.16) as
attorney's fees.
On the cross-claim of defendant Cosmos Bottling Company, Inc., defendant Intergames, Inc, is
hereby ordered to reimburse to the former any and all amounts which may be recovered by the
plaintiffs from it by virtue of this Decision.
SO ORDERED.
The RTC observed that the safeguards allegedly instituted by Intergames in conducting the
marathon had fallen short of the yardstick to satisfy the requirements of due diligence as called
for by and appropriate under the circumstances; that the accident had happened because of
inadequate preparation and Intergames' failure to exercise due diligence; 19 that the respondents
could not be excused from liability by hiding behind the waiver executed by Rommel and the
permission given to him by his parents because the waiver could only be effective for risks
inherent in the marathon, such a:s stumbling, heat stroke, heart attack during the race, severe
exhaustion and similar occurrences;20 that the liability of the respondents towards the
participants and third persons was solidary, because Cosmos, the sponsor of the event, had
been the principal mover of the event, and, as such, had derived benefits from the marathon that
in turn had carried responsibilities towards the participants and the public; that the respondents'
agreement to free Cosmos from any liability had been an agreement binding only between them,
and did not bind third persons; and that Cosmos had a cause of action against Intergames for
whatever could be recovered by the petitioners from Cosmos. 21
Decision of the CA
All the parties appealed to the CA.
The petitioners contended that the RTC erred in not awarding damages for loss of earning
capacity on the part of Rommel for the reason that such damages were not recoverable due to
Rommel not yet having finished his schooling; and that it would be premature to award such
damages upon the assumption that he would finish college and be gainfully employed. 22
On their part, Cosmos and Intergames separately raised essentially similar errors on the part of
the RTC, to wit: (1) in holding them liable for the death of Rommel; (2) in finding them negligent
in conducting the marathon; (3) in holding that Rommel and his parents did not assume the risks
of the marathon; (4) in not holding that the sole and proximate cause of the death of Rommel
was the negligence of the jeepney driver; and (5) in making them liable, jointly and solidarily, for
damages, attorney's fees and expenses of litigation.23
The CA reduced the issues to four, namely:
1. Whether or not appellant Intergames was negligent in its conduct of the "1st Pop Cola Junior
Marathon" held on June 15, 1980 and if so, whether its negligence was the proximate cause of
the death of Rommel Abrogar.
2. Whether or not appellant Cosmos can be held jointly and solidarily liable with appellant
Intergames for the death of Rommel Abrogar, assuming that appellant Intergames is found to
have been negligent in the conduct of the Pop Cola marathon and such negligence was the
proximate cause of the death of Rommel Abrogar.
3. Whether or not the appellants Abrogar are entitled to be compensated for the "loss of earning
capacity" of their son Rommel.
4. Whether or not the appellants Abrogar are entitled to the actual, moral, and exemplary
damages granted to them by the Trial Court.24
In its assailed judgment promulgated on March 10, 2004,25 the CA ruled as follows:
As to the first issue, this Court finds that appellant Intergames was not negligent in organizing
the said marathon.
Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct to human affairs, would do, or doing
something which a prudent and reasonable man would not do.
The whole theory of negligence presuppose some uniform standard of behavior which must be
an external and objective one, rather than the individual judgment good or bad, of the particular
actor; it must be, as far as possible, the same for all persons; and at the same time make proper
allowance for the risk apparent to the actor for his capacity to meet it, and for the circumstances
under which he must act.
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 of the acts involved in the
particular case.
In the case at bar, the trial court erred in finding that the appellant Intergames failed to satisfy the
requirements of due diligence in the conduct of the race.
The trial court in its decision said that the accident in question could have been avoided if the
route of the marathon was blocked off from the regular traffic, instead of allowing the runners to
run together with the flow of traffic. Thus, the said court considered the appellant Intergames at
fault for proceeding with the marathon despite the fact that the Northern Police District, MPF,
Quezon City did not allow the road to be blocked off from traffic.
This Court finds that the standard of conduct used by the trial court is not the ordinary conduct of
a prudent man in such a given situation. According to the said court, the only way to conduct a
safe road race is to block off the traffic for the duration of the event and direct the cars and public
utilities to take alternative routes in the meantime that the marathon event is being held. Such
standard is too high and is even inapplicable in the case at bar because, there is no alternative
route from IBP to Don Mariano Marcos to Quezon City Hall.
The Civil Code provides that if the law or contract does not state the diligence which is to be
observed in the performance of an obligation that which is expected of a good father of the
family shall only be required. Accordingly, appellant Intergames is only bound to exercise the
degree of care that would be exercised by an ordinarily careful and prudent man in the same
position and circumstances and not that of the cautious man of more than average prudence.
Hence, appellant Intergames is only expected to observe ordinary diligence and not
extraordinary diligence.
In this case, the marathon was allowed by the Northern Police District, MPF, Quezon City on the
condition that the road should not be blocked off from traffic. Appellant Intergames had no
choice. It had to comply with it or else the said marathon would not be allowed at all.
The trial court erred in contending that appellant Intergames should have looked for alternative
places in Metro Manila given the condition set by the Northern Police District, MPF, Quezon City;
precisely because as Mr. Jose Castro has testified the said route was found to be the best route
after a careful study and consideration of all the factors involved. Having conducted several
marathon events in said route, appellant Intergames as well as the volunteer groups and the
other agencies involved were in fact familiar with the said route. And assuming that there was an
alternative place suitable for the said race, the question is would they be allowed to block off the
said road from traffic?
Also, the trial court erred in stating that there was no adequate number of marshals, police
officers and personnel to man the race so as to prevent injury to the participants.
The general rule is that the party who relies on negligence for his cause of action has the burden
of proving the existence of the same, otherwise his action fails.
Here, the appellants-spouses failed to prove that there was inadequate number of marshals,
police officers, and personnel because they failed to prove what number is considered adequate.
This court considers that seven (7) traffic operatives, five (5) motorcycle policemen, fifteen (15)
patrolmen deployed along the route, fifteen (15) boyscouts, twelve (12) CA Ts, twenty (20)
barangay tanods, three (3) ambulances and three (3) medical teams were sufficient to stage a
safe marathon.
Moreover, the failure of Mr. Jose R. Castro, Jr. to produce records of the lists of those
constituting the volunteer help during the marathon is not fatal to the case considering that one
of the volunteers, Victor Landingin of the Citizens Traffic Action (CTA) testified in court that CTA
fielded five units on June 15, 1980, assigned as follows: (1) at the sphere head; (2) at the finish
line; (3) tail ender; (4) & (5) roving.
The trial court again erred in concluding that the admission of P/Lt. Jesus Lipana, head of the
traffic policemen assigned at the marathon, that he showed up only at the finish line means that
he did not bother to check on his men and did not give them appropriate instructions. P/Lt.
Lipana in his testimony explained that he did not need to be in the start of the race because he
had predesignated another capable police officer to start the race.
In addition, this Court finds that the precautionary measures and preparations adopted by
appellant Intergames were sufficient considering the circumstances surrounding the case.
Appellant Intergames, using its previous experiences in conducting safe and successful road
races, took all the necessary precautions and made all the preparations for the race. The initial
preparations included: determination of the route to be taken; and an ocular inspection of the
same to see if it was well-paved, whether it had less corners for easy communication and
coordination, and whether it was wide enough to accommodate runners and transportation.
Appellant Intergames choose the Don Mariano Marcos Avenue primarily because it was well-
paved; had wide lanes to accommodate runners and vehicular traffic; had less corners thus
facilitating easy communication and coordination among the organizers and cooperating
agencies; and was familiar to the race organizers and operating agencies. The race covered a
ten-kilometer course from the IBP lane to the Quezon City Hall Compound passing through the
Don Mariano Marcos A venue, which constituted the main stretch of the route. Appellant
Intergames scheduled the marathon on a Sunday morning, when traffic along the route was at
its lightest. Permission was sought from the then Quezon City Mayor Adelina Rodriguez for the
use of the Quezon City Hall Grandstand and the street fronting it as the finish line. Police
assistance was also obtained to control and supervise the traffic. The Quezon City Traffic
Detachment took charge of traffic control by assigning policemen to the traffic route. The
particular unit assigned during the race underwent extensive training and had been involved in
past marathons, including marathons in highly crowded areas. The Philippine Boy Scouts tasked
to assist the police and monitor the progress of the race; and Citizens Traffic Action Group
tasked with the monitoring of the race, which assigned five units consisting of ten operatives, to
provide communication and assistance were likewise obtained. Finally, medical equipments and
personnel were also requested from Camp Aguinaldo, the Philippine Red Cross and the Hospital
ng Bagong Lipunan.
Neither does this Court find the appellant Intergames' conduct of the marathon the proximate
cause of the death of Rommel Abrogar. Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any efficient intervening cause, produces injury,
and without which the result would not have occurred.
It appears that Rommel Abrogar, while running on Don Mariano Marcos A venue and after
passing the Philippine Atomic Energy Commission Building, was bumped by a jeepney which
apparently was racing against a minibus and the two vehicles were trying to crowd each other. In
fact, a criminal case was filed against the jeepney driver by reason of his having killed Rommel
Abrogar.
This proves that the death of Rommel Abrogar was caused by the negligence of the jeepney
driver. Rommel Abrogar cannot be faulted because he was performing a legal act; the marathon
was conducted with the permission and approval of all the city officials involved. He had the right
to be there. Neither can the appellant Intergames be faulted, as the organizer of the said
marathon, because it was not negligent in conducting the marathon.
Given the facts of this case, We believe that no amount of precaution can prevent such an
accident. Even if there were fences or barriers to separate the lanes for the runners and for the
vehicles, it would not prevent such an accident in the event that a negligent driver loses control
of his vehicle. And even if the road was blocked off from traffic, it would still not prevent such an
accident, if a jeepney driver on the other side of the road races with another vehicle loses control
of his wheel and as a result hits a person on the other side of the road. Another way of saying
this is: A defendant's tort cannot be considered a legal cause of plaintiffs damage if that damage
would have occurred just the same even though the defendant's tort had not been committed.
This Court also finds the doctrine of assumption of risk applicable in the case at bar. As
explained by a well-known authority on torts:
"The general principle underlying the defense of assumption of risk is that a plaintiff who
voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the
defendant cannot recover for such harm. The defense may arise where a plaintiff, by contract or
otherwise, expressly agrees to accept a risk or harm arising from the defendant's conduct, or
where a plaintiff who fully understands a risk or harm caused by the defendant's conduct, or by a
condition created by the defendant, voluntarily chooses to enter or remain, or to permit his
property to enter or remain, within the area of such risk, under circumstances manifesting his Furthermore, where a person voluntarily participates in a lawful game or contest, he assumes
willingness to accept the risk. the ordinary risks of such game or contest so as to preclude recovery from the promoter or
operator of the game or contest for injury or death resulting therefrom. Proprietors of
amusements or of places where sports and games are played are not insurers of safety of the
xxxx
public nor of their patrons.

"Assumption of the risk in its primary sense arises by assuming through contract, which may be
In McLeod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy, seventeen
implied, the risk of a known danger. Its essence is venturousness. It implies intentional exposure
years of age, of ordinary intelligence and physique, who entered a race conducted by a
to a known danger; It embraces a mental state of willingness; It pertains to the preliminary
department store, the purpose of which was to secure guinea fowl which could be turned in for
conduct of getting into a dangerous employment or relationship, it means voluntary incurring the
cash prizes, had assumed the ordinary risks incident thereto and was barred from recovering
risk of an accident, which may or may not occur, and which the person assuming the risk may be
against the department store for injuries suffered when, within catching distance, he stopped to
careful to avoid; and it defeats recovery because it is a previous abandonment of the right to
catch a guinea, and was tripped or stumbled and fell to the pavement, six or eight others falling
complain if an accident occurs.
upon him. The court further said: "In this (the race) he was a voluntary participant. xxx The
anticipated danger was as obvious to him as it was to appellant (the department store). While
"Of course, if the defense is predicated upon an express agreement the agreement must be not an adult, he was practically 17 years of age, of ordinary intelligence, and perfectly able to
valid, and in the light of this qualification the rule has been stated that a plaintiff who, by contract determine the risks ordinarily incident to such games. An ordinary boy of that age is practically
or otherwise, expressly agreed to accept a risk of harm arising from the defendant's negligent or as well advised as to the hazards of baseball, basketball, football, foot races and other games of
reckless conduct, cannot recover for such harm unless the agreement is invalid as contrary to skill and endurance as is an adult
public policy.
x x x."
xxxx
In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race the
"The defense of assumption of risk presupposes: (1) that the plaintiff had actual knowledge of winner of which was to represent the country in the annual Spirit of Pheidippides Marathon
the danger; (2) that he understood and appreciated the risk from the danger; and (3) that he Classic in Greece, if he equals or breaks the 29-minute mark for the 10-km. race. Thus, Rommel
voluntarily exposed himself to such risk. x x x Abrogar having voluntarily participated in the race, with his parents' consent, assumed all the
risks of the race.
"The term 'risk' as used in this connection applies to known dangers, and not to things from
which danger may possibly flow. The risk referred to is the particular risk, or one of the risks, Anent the second issue, this Court finds that appellant Cosmos must also be absolved from any
which the plaintiff accepted within the context of the situation in which he placed himself and the liability in the instant case.
question is whether the specific conduct or condition which caused the injury was such a risk."
This Court finds that the trial court erred in holding appellant Cosmos liable for being the
In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar, principal mover and resultant beneficiary of the event.
surveyed the route of the marathon and even attended a briefing before the race. Consequently,
he was aware that the marathon would pass through a national road and that the said road
In its decision it said that in view of the fact that appellant Cosmos will be deriving certain
would not be blocked off from traffic. And considering that he was already eighteen years of age,
benefits from the marathon event, it has the responsibility to ensure the safety of all the
had voluntarily participated in the marathon, with his parents' consent, and was well aware of the
participants and the public. It further said that the stipulations in the contract entered into by the
traffic hazards along the route, he thereby assumed all the risks of the race. This is precisely
two appellants, Cosmos and Intergames, relieving the former from any liability does not bind
why permission from the participant's parents, submission of a medical certificate and a waiver
third persons.
of all rights and causes of action arising from the participation in the marathon which the
participant or his heirs may have against appellant Intergames were required as conditions in
joining the marathon. This Court does not agree with the reasoning of the trial court. The sponsorship contract entered
between appellant Cosmos and appellant Intergames specifically states that:
In the decision of the trial court, it stated that the risk mentioned in the waiver signed by Rommel
Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack and other 1. COSMOS BOTTLING CORPORATION shall pay INTERGAMES the amount of FIFTY FIVE
similar risks. It did not consider vehicular accident as one of the risks included in the said waiver. THOUSAND PESOS (₱55,000.00) representing full sponsorship fee and in consideration
thereof, INTERGAMES shall organize and stage a marathon race to be called '1st POP COLA
JUNIOR MARATHON.
This Court does not agree. With respect to voluntary participation in a sport, the doctrine of
assumption of risk applies to any facet of the activity inherent in it and to any open and obvious
condition of the place where it is carried on. We believe that the waiver included vehicular xxxx
accidents for the simple reason that it was a road race run on public roads used by vehicles.
Thus, it cannot be denied that vehicular accidents are involved. It was not a track race which is
3. INTER GAMES shall draw up all the rules of the marathon race, eligibility requirements of
held on an oval and insulated from vehicular traffic. In a road race, there is always the risk of
participants as well as provide all the staff required in the organization and actual staging of the
runners being hit by motor vehicles while they train or compete. That risk is inherent in the sport
race. It is understood that all said staff shall be considered under the direct employ of
and known to runners. It is a risk they assume every time they voluntarily engage in their sport.
INTERGAMES which shall have full control over them.
 xxxx
5. INTERGAMES shall secure all the necessary permits, clearances, traffic and police
assistance in all the areas covered by the entire route of the '1st POP COLA JUNIOR
MARATHON.
12. INTERGAMES shall hold COSMOS BOTTLING CORPORATION, completely free and
harmless from any claim or action for liability for any injuries or bodily harm which may be
sustained by any of the entries in the '1st POP COLA JUNIOR MARATHON', or for any
damages to the property or properties of third parties, which may likewise arise in the course of
the race.
From the foregoing, it is crystal clear that the role of the appellant Cosmos was limited to
providing financial assistance in the form of sponsorship. Appellant Cosmos' sponsorship was
merely in pursuance to the company's commitment for spo1is development of the youth as well
as for advertising purposes. The use of the name Cosmos was done for advertising purposes
only; it did not mean that it was an organizer of the said marathon. As pointed out by Intergames'
President, Jose Castro Jr., appellant Cosmos did not even have the right to suggest the location
and the number of runners.
To hold a defendant liable for torts, it must be clearly shown that he is the proximate cause of
the harm done to the plaintiff. The nexus or connection of the cause and effect, between a
negligent act and the damage done, must be established by competent evidence.
In this case, appellant Cosmos was not negligent in entering into a contract with the appellant
Intergames considering that the record of the latter was clean and that it has conducted at least
thirty (30) road races.
Also there is no direct or immediate causal connection between the financial sponsorship and
the death of Rommel Abrogar. The singular act of providing financial assistance without
participating in any manner in the conduct of the marathon cannot be palmed off as such
proximate cause. In fact, the appellant spouses never relied on any representation that Cosmos
organized the race. It was not even a factor considered by the appellants-spouses in allowing
their son to join said marathon.
In view of the fact that both defendants are not liable for the death of Rommel Abrogar,
appellants-spouses are not entitled to actual, moral, exemplary damages as well as for the "loss
of earning capacity" of their son. The third and fourth issues are thus moot and academic.
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment appealed from must be, as it
hereby is, REVERSED and SET ASIDE, and another entered DISMISSING the complaint a quo.
The appellants shall bear their respective costs.
26
SO ORDERED.
Issues
In this appeal, the petitioners submit that the CA gravely erred:
A.
x x x in reversing the RTC Decision, (and) in holding that respondent Intergames was not
negligent considering that:
1. Respondent Intergames failed to exercise the diligence of a good father of the family in the
conduct of the marathon in that it did not block off from traffic the marathon route; and
2. Respondent Intergames' preparations for the race, including the number of marshal during the
marathon, were glaringly inadequate to prevent the happening of the injury to its participants.
B.
x x x in reversing the RTC Decision, (and) in holding that the doctrine of assumption of risk finds
application to the case at bar even though getting hit or run over by a vehicle is not an inherent
risk in a marathon race. Even assuming arguendo that deceased Abrogar made such waiver as
claimed, still there can be no valid waiver of one's right to life and limb for being against public
policy.
C.
x x x in reversing the RTC Decision, (and) in absolving respondent Cosmos from liability to
petitioners on the sole ground that respondent Cosmos' contract with respondent Intergames
contained a stipulation exempting the former from liability.
D.
x x x m reversing the RTC Decision and consequently holding respondents free from liability,
(and) in not awarding petitioners with actual, moral and exemplary damages for the death of
their child, Rommel Abrogar.27
Ruling of the Court
The appeal is partly meritorious.
I
Review of factual issues is allowed because of
the conflict between the findings of fact
by the RTC and the CA on the issue of negligence
The petitioners contend that Intergames was negligent; that Cosmos as the sponsor and
Intergames as the organizer of the marathon both had the obligation to provide a reasonably
safe place for the conduct of the race byblocking the route of the race from vehicular traffic and
by providing adequate manpower and personnel to ensure the safety of the participants; and
that Intergames had foreseen the harm posed by the situation but had not exercised the
diligence of a good father of a family to avoid the risk;28 hence, for such omission, Intergames
was negligent.29
Refuting, Cosmos and Intergames submit that the latter as the organizer was not negligent
because it had undertaken all the precautionary measures to ensure the safety of the race; and
that there was no duty on the part of the latter as the organizer to keep a racecourse "free and
clear from reasonably avoidable elements that would [occasion] or have the probable tendency,
to occasion injury."30
The issue of whether one or both defendants were negligent is a mixed issue of fact and law.
Does this not restrict the Court against reviewing the records in this appeal on certiorari in order
to settle the issue?
The Court can proceed to review the factual findings of the CA as an exception to the general
rule that it should not review issues of fact on appeal on certiorari. We have 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.31 Considering that the CA arrived at factual findings contrary to those of the trial
court, our review of the records in this appeal should have to be made.
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.32 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." 33 The Civil Code makes liability for
negligence clear under Article 2176,34 and Article 20.35
To determine the existence of negligence, the following time-honored test has been set in Picart
v. Smith:36
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.37 (bold underscoring supplied for
emphasis)
A careful review of the evidence presented, particularly the testimonies of the relevant
witnesses, in accordance with the foregoing guidelines reasonably leads to the conclusion that
the safety and precautionary measures undertaken by Intergames were short of the diligence
demanded by the circumstances of persons, time and place under consideration. Hence,
Intergames as the organizer was guilty of negligence.
The race organized by Intergames was a junior marathon participated in by young persons aged
14 to 18 years. It was plotted to cover a distance of 10 kilometers, starting from the IBP
Lane,38 then going towards the Batasang Pambansa, and on to the circular route towards the
Don Mariano Marcos Highway,39 and then all the way back to the Quezon City Hall compound
where the finish line had been set.40 In staging the event, Intergames had no employees of its
own to man the race,41 and relied only on the "cooperating agencies" and volunteers who had
worked with it in previous races.42 The cooperating agencies included the Quezon City police,
barangay tanods, volunteers from the Boy Scouts of the Philippines, the Philippine National Red
Cross, the Citizens Traffic Action Group, and the medical teams of doctors and nurses coming
from the Office of the Surgeon General and the Ospital ng Bagong Lipunan. 43 According to Jose
R. Castro, Jr., the President of Intergames, the preparations for the event included conducting
an ocular inspection of the route of the race,44 sending out letters to the various cooperating
agencies,45 securing permits from proper authorities,46 putting up directional signs,47 and setting
up the water stations.48
We consider the "safeguards" employed and adopted by Intergames not adequate to meet the
requirement of due diligence.
For one, the police authorities specifically prohibited Intergames from blocking Don Mariano
Marcos Highway in order not to impair road accessibility to the residential villages located
beyond the IBP Lanc.49
However, contrary to the findings of the CA,50 Intergames had a choice on where to stage the
marathon, considering its admission of the sole responsibility for the conduct of the event,
including the choice of location.
Moreover, the CA had no basis for holding that "the said route was found to be the best route
after a careful study and consideration of all the factors involved."51 Castro, Jr. himself attested
that the route had been the best one only within the vicinity of the Batasan Pambansa, to wit:
COURT
q Was there any specific reason from ... Was there any specific reason why you used this route
from Batasan to City Hall? Was there any special reason?
a We have, your Honor, conducted for example the Milo Marathon in that area in the Batasan
Pambansa and we found it to be relatively safer than any other areas within the vicinity. As a
matter of fact, we had more runners in the Milo Marathon at that time and nothing happened,
your Honor.52
The chosen route (IBP Lane, on to Don Mariano Marcos Highway, and then to Quezon City Hall)
was not the only route appropriate for the marathon. In fact, Intergames came under no
obligation to use such route especially considering that the participants, who were young and
inexperienced runners, would be running alongside moving vehicles.
Intergames further conceded that the marathon could have been staged on a blocked-off route
like Roxas Boulevard in Manila where runners could run against the flow of vehicular
traffic.53 Castro, Jr. stated in that regard:
COURT TO WITNESS
q What law are you talking about when you say I cannot violate the law?
a The police authority, your Honor, would not grant us permit because that is one of the
conditions that if we are to conduct a race we should run the race in accordance with the flow of
traffic.
q Did you not inform the police this is in accordance with the standard safety measures for a
marathon race?
a I believed we argued along that line but but (sic) again, if we insist the police again would not
grant us any permit like ... except in the case of Roxas Boulevard when it is normally closed
from 8 a.m. when you can run against the flow of traffic.
q You were aware for a runner to run on the same route of the traffic would be risky because he
would not know what is coming behind him?
a I believed we talked of the risk, your Honor when the risk has been minimized to a certain
level. Yes, there is greater risk when you run with the traffic than when you run against the traffic
to a certain level, it is correct but most of the races in Manila or elsewhere are being run in
accordance with the flow of the traffic.
xxxx
ATTY. VINLUAN
q Following the observation of the Court, considering the local condition, you will agree with me
the risks here are greater than in the United States where drivers on the whole follow traffic
rules?
a That is correct.
q And because of that fact, it is with all the more reason that you should take all necessary
precautions to insure the safety of the runners?
a That is correct.54
xxxx
COURT:
xxxx
Q In your case in all the marathons that you had managed, how many cases have you
encountered where the routes are blocked off for vehicular traffic?
A These are the International Marathon, Philippines Third World Marathon and the Milo
Marathon. We are blocking them to a certain length of time.
Q What was the purpose of blocking the routes? Is it for the safety of the runners or just a matter
of convenience?
A In blocking off the route, Your Honor, it is light easier for the runners to run without
impediments to be rendered by the people or by vehicles and at the same time it would be also
advantageous if the road will be blocked off for vehicle traffic permitted to us by the traffic
authorities.
Q So, in this case, you actually requested for the traffic authorities to block off the route?
A As far as I remember we asked Sgt. Pascual to block off the route but considering that it is the
main artery to Fairview Village, it would not be possible to block off the route since it will cause a
lot of inconvenience for the other people in those areas and jeepney drivers.
Q In other words, if you have your way you would have opted to block off the route.
A Yes, Your Honor.
Q But the fact is that the people did not agree.
A Yes, Your Honor, and it is stated in the permit given to us.55
Based on the foregoing testimony of Castro, Jr., Intergames had full awareness of the higher
risks involved in staging the race alongside running vehicles, and had the option to hold the race
in a route where such risks could be minimized, if not eliminated. But it did not heed the danger
already foreseen, if not expected, and went ahead with staging the race along the plotted route
on Don Mariano Marcos Highway on the basis of its supposedly familiarity with the route. Such
familiarity of the organizer with the route and the fact that previous races had been conducted
therein without any untoward incident56 were not in themselves sufficient safeguards. The
standards for avoidance of injury through negligence further required Intergames to establish
that it did take adequate measures to avert the foreseen danger, but it failed to do so.
Another failing on the part of Intergames was the patent inadequacy of the personnel to man the
route. As borne by the records, Intergames had no personnel of its own for that purpose, and
relied exclusively on the assistance of volunteers, that is, "seven (7) traffic operatives, five (5)
motorcycle policemen, fifteen (15) patrolmen deployed along the route, fifteen (15) boy scouts,
twelve (12) CATs, twenty (20) barangay tanods, three (3) ambulances and three (3) medical
teams"57 to ensure the safety of the young runners who would be running alongside moving
vehicular traffic, to make the event safe and well coordinated.
Although the party relying on negligence as his cause of action had the burden of proving the
existence of the same, Intergames' coordination and supervision of the personnel sourced from
the cooperating agencies did not satisfy the diligence required by the relevant circumstances. In
this regard, it can be pointed out that the number of deployed personnel, albeit sufficient to stage COURT
the marathon, did not per se ensure the safe conduct of the race without proof that such
deployed volunteers had been properly coordinated and instructed on their tasks.
q Did you have any action, plan or brochure which would indicate the assignment of each of the
participating group?
That the proper coordination and instruction were crucial elements for the safe conduct of the
race was well known to Intergames. Castro, Jr. stated as much, to wit:
WITNESS

ATTY. LOMBOS:
a Normally, sir, many of the races don't have that except when they called them to meeting
either as a whole group or the entire cooperating agency or meet them per group.
xxxx
COURT
Q You also said that if you block off one side of the road, it is possible that it would be more
convenient to hold the race in that matter. Will you tell the Honorable Court if it is possible also to
q Did you have a check list of the activities that would have to be entered before the actual
hold a race safely if the road is not blocked off?
marathon some kind of system where you will indicate this particular activity has to be checked
etc. You did not have that?
A Yes, sir.
WITNESS
Q How is it done.
q Are you asking, your honor, as a race director of I will check this because if I do that, I won't
A You can still run a race safely even if it is partially blocked off as long as you have the have a race because that is not being done by any race director anywhere in the world?
necessary cooperation with the police authorities, and the police assigned along the route of the
race and the police assigned would be there, this will contribute the safety of the participants,
COURT
and also the vehicular division, as long as there are substantial publicities in the newspapers,
normally they will take the precautions in the use of the particular route of the race.
I am interested in your planning activities.
Q Let me clarify this. Did you say that it is possible to hold a marathon safely if you have this
traffic assistance or coordination even if the route is blocked or not blocked? q In other words, what planning activities did you perform before the actual marathon?

A It is preferable to have the route blocked but in some cases, it would be impossible for the
portions of the road to be blocked totally. The route of the race could still be safe for runners if a
proper coordination or the agencies are notified especially police detailees to man the particular
stage.58
a The planning activities we had, your honor, was to coordinate with the different agencies
involved informing them where they would be more or less placed.
COURT

Sadly, Intergames' own evidence did not establish the conduct of proper coordination and
instruction. Castro, Jr. described the action plan adopted by Intergames in the preparation for
the race, as follows:
q Let us go to ... Who was supposed to be coordinating with you as to the citizens action group
who was your ... you were referring to a person who was supposed to be manning these people
and who was the person whom you coordinate with the Traffic Action Group?

COURT
WITNESS

a Did you have any rehearsal let us say the race was conducted on June 15, now before June
15 you call a meeting of all these runners so you can have more or less a map-up and you a I can only remember his name ... his family name is Esguerra.
would indicate or who will be stationed in their places etc. Did you have such a rehearsal?
q How about with the Tanods?
WITNESS
a With the Tanods his name is Pedring Serrano.
a It is not being done, your honor, but you have to specify them. You meet with the group and
you tell them that you wanted them to be placed in their particular areas which we pointed out to q And with the Boys Scouts? (sic)
them for example in the case of the Barangay Tanod, I specifically assigned them in the areas
and we sat down and we met.
a And with the Boys Scouts of the Phils. (sic) it is Mr. Greg Panelo.
COURT q From your house? He went in your house?

q When did you last meet rather how many times did you meet with Esguerra before the a Yes, your honor.
marathon on June 15?
q So you did not have let us say a ... you don't have records of your meetings with these
WITNESS people?

a The Citizens Traffic Action Group, your honor, had been with me m previous races. WITNESS

COURT a With the Citizens Traffic Action, your honor?

q I am asking you a specific question. I am not interested in the Citizen Traffic Action Group. The
marathon was on June 15, did you meet with him on June 14, June 13 or June 12?
a We met once, your honor, I cannot remember the date.
q You don't recall how many days before?
a I cannot recall at the moment.
q How about with Mr. Serrano, how many times did you meet with him before the race?
a If my mind does not fail me, your honor, I met him twice because he lives just within our area
and we always see each other.
q How about with Panelo, how many times did you meet him?
COURT
a Yes.
WITNESS
a I don't have, your honor.
COURT
q Because you are familiar, I was just thinking this is an activity which requires planning etc.,
what I was thinking when you said this was never done in any part of the world but all activities it
has to be planned. There must be some planning, now are you saying that in this particular case
you had no written plan or check list of activities what activities have to be implemented on a
certain point and time, who are the persons whom you must meet in a certain point and time.

WITNESS
a With Mr. Panelo, I did not meet with them, your honor.

a Normally, we did not have that, your honor, except the check list of all the things that should be
q Was there an occasion where before the race you met with these three people together since
ready at a particular time prior to the race and the people to be involved and we have a check
you did not meet with Panelo anytime? Was there anytime where you met with Serrano and
list to see to it that everything would be in order before the start of the race.
Esguerra together?

COURT
WITNESS

Proceed.
a No, your honor.

ATTY. VINLUAN
COURT

q Following the question of the Court Mr. Castro, did you meet with Lt. Depano of the Police
g When you met once with Esguerra, where did you meet? What place?
Department who were supposed to supervise the police officers assigned to help during the
race?
a I cannot recall at the moment, your honor, since it was already been almost six years ago.
a I did not meet with him, sir.
g How about Serrano, where did you meet him?
q You did not meet with him?
a We met in my place.
a I did not meet with him.
q In fact, ever before or during the race you had no occasion to talk to Lt. Depano. Is that
correct?
a That is correct, sir.
ATTY. VINLUAN
Based on the question of the Court and your answer to the question of the Court, are you trying
to say that this planning before any race of all these groups who have committed to help in the
race, this is not done in any part of the world?
WITNESS
a In the latter years when your race became bigger and bigger, this is being done now slowly.
ATTY. VINLUAN
q But for this particular race you will admit that you failed to do it when you have to coordinate
and even have a dry run of the race you failed to do all of that in this particular race, yes or no?
a Because there was ...
COURT
It was already answered by him when I asked him. The Court has ... Everybody has a copy how
of this time planner. Any activity or even meeting a girlfriend or most people plan.
A Because I believe there was no need for us to do that since we have been doing this for many
years and we have been the same people, same organization with us for so many years
conducting several races including some races in that area consisting of longer distances and
consisting of more runners, a lot more runners in that areay (sic) so these people, they know
exactly what to do and there was no need for us to have a rehearsal. I believe this rehearsal
would only be applicable if I am new and these people are new then, we have to rehearse.
ATTY. LOMBOS
q You also stated Mr. Castro that you did not have any action plan or brochure which you would
indicate, an assignment of each of the participating group as to what to do during the race. Will
you please explain what you meant when you said you have no action plan or brochure?
WITNESS
a What I mean of action plan, I did not have any written action plan but I was fully aware of what
to do. I mean, those people did not just go there out of nowhere. Obviously, there was an action
on my part because I have to communicate with them previously and to tell them exactly what
the race is all about; where to start; where it would end, and that is the reason why we have the
ambulances, we have the Boy Scouts, we have the CT A, we have the police, so it was very
obvious that there was a plan of action but not written because I know pretty well exactly what to
do. I was dealing with people who have been doing this for a long period of time. 60
While the level of trust Intergames had on its volunteers was admirable, the coordination among
the cooperating agencies was predicated on circumstances unilaterally assumed by Intergames.
It was obvious that Intergames' inaction had been impelled by its belief that it did not need any
action plan because it had been dealing with people who had been manning similar races for a
long period of time.

The evidence presented undoubtedly established that Intergames' notion of coordination only
A TTY. F .M. LOMBOS involved informing the cooperating agencies of the date of the race, the starting and ending
points of the route, and the places along the route to man. Intergames did not conduct any
If your honor please, before we proceed ... general assembly with all of them, being content with holding a few sporadic meetings with the
leaders of the coordinating agencies. It held no briefings of any kind on the actual duties to be
performed by each group of volunteers prior to the race. It did not instruct the volunteers on how
WITNESS to minimize, if not avert, the risks of danger in manning the race, despite such being precisely
why their assistance had been obtained in the first place.
In the latter years, your honor, when your race became bigger and bigger, this is being done
now slowly. Intergames had no right to assume that the volunteers had already been aware of what exactly
they would be doing during the race. It had the responsibility and duty to give to them the proper
q For this particular race you will admit that you failed to do it? instructions despite their experience from the past races it had organized considering that the
particular race related to runners of a different level of experience, and involved different
weather and environmental conditions, and traffic situations. It should have remembered that the
a Because there was no need, sir.59 personnel manning the race were not its own employees paid to perform their tasks, but
volunteers whose nature of work was remotely associated with the safe conduct of road races.
Probably sensing that he might have thereby contradicted himself, Castro, Jr. clarified on re- Verily, that the volunteers showed up and assumed their proper places or that they were
direct examination: sufficient in number was not really enough. It is worthy to stress that proper coordination in the
context of the event did not consist in the mere presence of the volunteers, but included making
sure that they had been properly instructed on their duties and tasks in order to ensure the
ATTY. LOMBOS safety of the young runners.

Q Now, you also responded to a question during the same hearing and this appears on page 26 It is relevant to note that the participants of the 1st Pop Cola Junior Marathon were mostly
of the transcript that you did not hold any rehearsal or dry run for this particular marathon. Could minors aged 14 to 18 years joining a race of that kind for the first time. The combined factors of
you tell the Court why you did not hold any such rehearsal or dry run? their youth, eagerness and inexperience ought to have put a reasonably prudent organizer on
higher guard as to their safety and security needs during the race, especially considering
Intergames' awareness of the risks already foreseen and of other risks already known to it as of
similar events in the past organizer. There was no question at all that a higher degree of
diligence was required given that practically all of the participants were children or minors like
Rommel; and that the law imposes a duty of care towards children and minors even if ordinarily
there was no such duty under the same circumstances had the persons involved been adults of
sufficient discretion.61 In that respect, Intergames did not observe the degree of care necessary
as the organizer, rendering it liable for negligence. As the Court has emphasized in Corliss v.
The Manila Railroad Company,62 where the danger is great, a high degree of care is necessary,
and the failure to observe it is a want of ordinary care under the circumstances. 63
The circumstances of the persons, time and place required far more than what Intergames
undertook in staging the race. Due diligence would have made a reasonably prudent organizer
of the race participated in by young, inexperienced or beginner runners to conduct the race in a
route suitably blocked off from vehicular traffic for the safety and security not only of the
participants but the motoring public as well. Since the marathon would be run alongside moving
vehicular traffic, at the very least, Intergames ought to have seen to the constant and closer
coordination among the personnel manning the route to prevent the foreseen risks from befalling
the participants. But this it sadly failed to do.
II
The negligence of Intergames as the organizer
was the proximate cause of the death of Rommel
As earlier mentioned, the CA found that Rommel, while running the marathon on Don Mariano
Marcos A venue and after passing the Philippine Atomic Energy Commission Building, was
bumped by a passenger jeepney that was racing with a minibus and two other vehicles as if
trying to crowd each other out. As such, the death of Rommel was caused by the negligence of
the jeepney driver.
Intergames staunchly insists that it was not liable, maintaining that even assuming arguendo that
it was negligent, the negligence of the jeepney driver was the proximate cause of the death of
Rommel; hence, it should not be held liable.
Did the negligence of Intergames give rise to its liability for the death of ommel notwithstanding
the negligence of the jeepney driver?
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:64
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." (Taylor vs.
Manila Electric Railroad and Light Co., supra, p. 15.)
In accordance with the decision of the Supreme Court of Spain, in order that a person may be
held guilty for damage through negligence, it is necessary that there be an act or omission on
the part of the person who is to be charged with the liability and that damage is produced by the
said act or omission.65 (Emphasis supplied)
We hold that the negligence of Intergames was the proximate cause despite the intervening
negligence of the jeepney driver.
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."66 In Vda. de
Bataclan, et al. v. Medina,67 the Court, borrowing from American Jurisprudence, has more
extensively defined proximate cause thusly:
"* * * '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 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."68
To be considered the proximate cause of the injury, the negligence need not be the event
closest in time to the injury; a cause is still proximate, although farther in time in relation to the
injury, if the happening of it set other foreseeable events into motion resulting ultimately in the
damage.69 According to an authority on civil law:70"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, even though
such injury would not have happened but for such condition or occasion. If no damage exists 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 act or
condition is the proximate cause."
Bouvier adds:
In many cases important questions arise as to which, in the chain of acts tending to the
production of a given state of things, is to be considered the responsible cause. It is not merely
distance of place or of causation that renders a cause remote. The cause nearest in the order of
causation, without any efficient concurring cause to produce the result, may be considered the
direct cause. In the course of decisions of cases in which it is necessary to determine which of
several causes is so far responsible for the happening of the act or injury complained of, what is
known as the doctrine of proximate cause is constantly resorted to in order to ascertain whether
the act, omission, or negligence of the person whom it is sought to hold liable was in law and in
fact responsible for the result which is the foundation of the action. 71
 xxxx In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar,
surveyed the route of the marathon and even attended a briefing before the race. Consequently,
he was aware that the marathon would pass through a national road and that the said road
The question of proximate cause is said to be determined, not by the existence or non-existence
would not be blocked off from traffic. And considering that he was already eighteen years of age,
of intervening events, but by their character and the natural connection between the original act
had voluntarily participated in the marathon, with his parents' consent, and was well aware of the
or omission and the injurious consequences. When the intervening cause is set in operation by
traffic hazards along the route, he thereby assumed all the risks of the race. This is precisely
the original negligence, such negligence is still the proximate cause; x x x If the party guilty of
why permission from the participant's parents, submission of a medical certificate and a waiver
the first act of negligence might have anticipated the intervening cause, the connection is not
of all rights and causes of action arising from the participation in the marathon which the
broken; x x x. Any number of causes and effects may intervene, and if they arc such as might
participant or his heirs may have against appellant Intergames were required as conditions in
with reasonable diligence have been foreseen, the last result is to be considered as the
joining the marathon.
proximate result. But whenever a new cause intervenes, which is not a consequence of the first
wrongful cause, which is not under control of the wrongdoer, which could not have been
foreseen by the exercise of reasonable diligence, and except for which the final injurious In the decision of the trial court, it stated that the risk mentioned in the waiver signed by Rommel
consequence could not have happened, then such injurious consequence must be deemed too Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack and other
remote; x x x.72 (bold underscoring supplied for emphasis) similar risks. It did not consider vehicular accident as one of the risks included in the said waiver.

An examination of the records in accordance with the foregoing concepts supports the This Court does not agree. With respect to voluntary participation in a sport, the doctrine of
conclusions that the negligence of Intergames was the proximate cause of the death of Rommel; assumption of risk applies to any facet of the activity inherent in it and to any open and obvious
and that the negligence of the jeepney driver was not an efficient intervening cause. condition of the place where it is carried on. We believe that the waiver included vehicular
accidents for the simple reason that it was a road race run on public roads used by vehicles.
Thus, it cannot be denied that vehicular accidents are involved. It was not a track race which is
First of all, Intergames' negligence in not conducting the race in a road blocked off from
held on an oval and insulated from vehicular traffic. In a road race, there is always the risk of
vehicular traffic, and in not properly coordinating the volunteer personnel manning the marathon
runners being hit by motor vehicles while they train or compete. That risk is inherent in the sport
route effectively set the stage for the injury complained of. The submission that Intergames had
and known to runners. It is a risk they assume every time they voluntarily engage in their sport.
previously conducted numerous safe races did not persuasively demonstrate that it had
exercised due diligence because, as the trial court pointedly observed, "[t]hey were only lucky
that no accident occurred during the previous marathon races but still the danger was there." 73 Furthermore, where a person voluntarily participates in a lawful game or contest, he assumes
the ordinary risks of such game or contest so as to preclude recovery from the promoter or
operator of the game or contest for injury or death resulting therefrom. Proprietors of
Secondly, injury to the participants arising from an unfortunate vehicular accident on the route
amusements or of places where sports and games are played are not insurers of safety of the
was an event known to and foreseeable by Intergames, which could then have been avoided if
public nor of their patrons.
only Intergames had acted with due diligence by undertaking the race on a blocked-off road, and
if only Intergames had enforced and adopted more efficient supervision of the race through its
volunteers. In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy, seventeen
years of age, of ordinary intelligence and physique, who entered a race conducted by a
department store, the purpose of which was to secure guinea fowl which could be turned in for
And, thirdly, the negligence of the jeepney driver, albeit an intervening cause, was not efficient
cash prizes, had assumed the ordinary risks incident thereto and was barred from recovering
enough to break the chain of connection between the negligence of Intergames and the injurious
against the department store for injuries suffered when, within catching distance, he stopped to
consequence suffered by Rommel. An intervening cause, to be considered efficient, must
catch a guinea, and was tripped or stumbled and fell to the pavement, six or eight others falling
be "one not produced by a wrongful act or omission, but independent of it, and adequate to bring
upon him. The comi further said: "In this (the race) he was a voluntary participant. x x x The
the injurious results. Any cause intervening between the first wrongful cause and the final injury
anticipated danger was as obvious to him as it was to appellant (the department store). While
which might reasonably have been foreseen or anticipated by the original wrongdoer is not such
not an adult, he was practically 17 years of age, of ordinary intelligence, and perfectly able to
an efficient intervening cause as will relieve the original wrong of its character as the proximate
determine the risks ordinarily incident to such games. An ordinary boy of that age is practically
cause of the final injury."74
as well advised as to the hazards of baseball, basketball, football, foot races and other games of
skill and endurance as is an adult
In fine, it was the duty of Intergames to guard Rommel against the foreseen risk, but it failed to
do so.
x x x."

III
In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race the
winner of which was to represent the country in the annual Spirit of Pheidippides Marathon
The doctrine of assumption of risk Classic in Greece, if he equals or breaks the 29-minute mark for the 19-km. race. Thus, Rommel
had no application to Rommel Abrogar having voluntarily participated in the race, with his parents' consent, assumed all the
risks of the race.75
Unlike the R TC, the CA ruled that the doctrine of assumption of risk applied herein; hence, it
declared Intergames and Cosmos not liable. The CA rendered the following rationalization to The doctrine of assumption of risk means that one who voluntarily exposes himself to an
buttress its ruling, to wit: obvious, known and appreciated danger assumes the risk of injury that may result therefrom. 76 It
rests on the fact that the person injured has consented to relieve the defendant of an obligation
of conduct toward him and to take his chance of injury from a known risk, and whether the
former has exercised proper caution or not is immaterial. 77 In other words, it is based on
voluntary consent, express or implied, to accept danger of a known and appreciated risk; it may
sometimes include acceptance of risk arising from the defendant's negligence, but one does not
ordinarily assume risk of any negligence which he does not know and appreciate.78 As a
defense in negligence cases, therefore, the doctrine requires the concurrence of three elements,
namely: (1) the plaintiff must know that the risk is present; (2) he must further understand its
nature; and (3) his choice to incur it must be free and voluntary. 79 According to
Prosser:80"Knowledge of the risk is the watchword of assumption of risk."
Contrary to the notion of the CA, the concurrence of the three elements was not shown to exist.
Rommel could not have assumed the risk of death when he participated in the race because
death was neither a known nor normal risk incident to running a race. Although he had surveyed
the route prior to the race and should be presumed to know that he would be running the race
alongside moving vehicular traffic, such knowledge of the general danger was not enough, for
some authorities have required that the knowledge must be of the specific risk that caused the
harm to him.81 In theory, the standard to be applied is a subjective one, and should be geared to
the particular plaintiff and his situation, rather than that of the reasonable person of ordinary
prudence who appears in contributory negligence.82 He could not have appreciated the risk of
being fatally struck by any moving vehicle while running the race. Instead, he had every reason
to believe that the organizer had taken adequate measures to guard all participants against any
danger from the fact that he was participating in an organized marathon. Stated differently,
nobody in his right mind, including minors like him, would have joined the marathon if he had
known of or appreciated the risk of harm or even death from vehicular accident while running in
the organized running event. Without question, a marathon route safe and free from foreseeable
risks was the reasonable expectation of every runner participating in an organized running
event.
Neither was the waiver by Rommel, then a minor, an effective form of express or implied
consent in the context of the doctrine of assumption of risk. There is ample authority, cited in
Prosser,83 to the effect that a person does not comprehend the risk involved in a known situation
because of his youth,84 or lack of information or experience,85 and thus will not be taken to
consent to assume the risk.
Clearly, the doctrine of assumption of risk does not apply to bar recovery by the petitioners.
IV
Cosmos is not liable for the negligence
of Intergames as the organizer
Nonetheless, the CA did not err in absolving Cosmos from liability.
The sponsorship of the marathon by Cosmos was limited to financing the race. Cosmos did
nothing beyond that, and did not involve itself at all in the preparations for the actual conduct of
the race. This verity was expressly confirmed by Intergames, through Castro, Jr., who declared
as follows:
COURT
q Do you discuss all your preparation with Cosmos Bottling Company?
a As far as the Cosmos Bottling Company (sic) was a sponsor as to the actual conduct of the
race, it is my responsibility. The conduct of the race is my responsibility. The sponsor has
nothing to do as well as its code of the race because they are not the ones running. I was the
one running. The responsibility of Cosmos was just to provide the sponsor's money.
COURT
q They have no right to who (sic) suggest the location, the number of runners, you decide these
yourself without consulting them?
a Yes, your honor.86
We uphold the finding by the CA that the role of Cosmos was to pursue its corporate
commitment to sports development of the youth as well as to serve the need for advertising its
business. In the absence of evidence showing that Cosmos had a hand in the organization of
the race, and took part in the determination of the route for the race and the adoption of the
action plan, including the safety and security measures for the benefit of the runners, we cannot
but conclude that the requirement for the direct or immediate causal connection between the
financial sponsorship of Cosmos and the death of Rommel simply did not exist. Indeed, Cosmos'
mere sponsorship of the race was, legally speaking, too remote to be the efficient and proximate
cause of the injurious consequences.
V
Damages
Article 2202 of the Civil Code lists the damages that the plaintiffs in a suit upon crimes and
quasi-delicts can recover from the defendant, viz.:
Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are
the natural and probable consequences of the act or omission complained of. It is not necessary
that such damages have been foreseen or could have reasonably been foreseen by the
defendant.
Accordingly, Intergames was liable for all damages that were the natural and probable
consequences of its negligence. In its judgment, the RTC explained the award of damages in
favor of the petitioners, as follows:
As borne by the evidence on record, the plaintiffs incurred medical, hospitalization and burial
expenses for their son in this aggregate amount of ₱28,061.65 (Exhibits "D'', "D-1" and "D-2"). In
instituting this case, they have paid their lawyer ₱5,000 as initial deposit, their arrangement
being that they would pay attorney's fees to the extent of 10% of whatever amount would be
awarded to them in this case.
For the loss of a son, it is unquestionable that plaintiffs suffered untold grief which should entitle
them to recover moral damages, and this Court believes that if only to assuage somehow their
untold grief but not necessarily to compensate them to the fullest, the nominal amount of
₱l00,00.00 should be paid by the defendants.
For failure to adopt elementary and basic precautionary measure to insure the safety of the
participants so that sponsors and organizers of sports events should exercise utmost diligence in
preventing injury to the participants and the public as well, exemplary damages should also be
paid by the defendants and this Court considers the amount of ₱50,000.00
as reasonable.87 it is fair and reasonable to fix the monthly income that the two would have earned in 1993 at
₱8,000.000 per month (or ₱96,000.00/year) and their deductible living and other incidental
expenses at ₱3,000.00 per month (or ₱36,000.00/year).93 (bold underscoring supplied for
Although we will not disturb the foregoing findings and determinations, we need to add to the
emphasis)
justification for the grant of exemplary damages. Article 2231 of the Civil Code stipulates that
exemplary damages are to be awarded in cases of quasi-delict if the defendant acted with gross
negligence. The foregoing characterization by the RTC indicated that Intergames' negligence In Perena v. Zarate,94 the Court fixed damages for loss of earning capacity to be paid to the
was gross. We agree with the characterization. Gross negligence, according to Mendoza v. heirs of the 15-year-old high school student of Don Bosco Technical Institute killed when a
Spouses Gomez,88 is the absence of care or diligence as to amount to a reckless disregard of moving train hit the school van ferrying him to school while it was traversing the railroad tracks.
the safety of persons or property; it evinces a thoughtless disregard of consequences without The RTC and the CA had awarded damages for loss of earning capacity computed on the basis
exerting any effort to avoid them. Indeed, the failure of Intergames to adopt the basic of the minimum wage in effect at the time of his death. Upholding said findings, the Court
precautionary measures for the safety of the minor participants like Rommel was in reckless opined:
disregard of their safety. Conduct is reckless when it is an extreme departure from ordinary care,
in a situation in which a high degree of danger is apparent; it must be more than any mere
x x x, the fact that Aaron was then without a history of earnings should not be taken against his
mistake resulting from inexperience, excitement, or confusion, and more than mere
parents and in favor of the defendants whose negligence not only cost Aaron his life and his
thoughtlessness or inadvertence, or simple inattention.89 The RTC did not recognize the right of
right to work and earn money, but also deprived his parents of their right to his presence and his
the petitioners to recover the loss of earning capacity of Rommel. It should have, for doing so
services as well. x x x. Accordingly, we emphatically hold in favor of the indemnification for
would have conformed to jurisprudence whereby the Court has unhesitatingly allowed such
Aaron's loss of earning capacity despite him having been unemployed, because compensation
recovery in respect of children, students and other non-working or still unemployed victims. The
of this nature is awarded not for loss of time or earnings but for loss of the deceased's power or
legal basis for doing so is Article 2206 (l) of the Civil Code, which stipulates that the
ability to earn money.
defendant "shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and
awarded by the court, unless the deceased on account of permanent physical disability not The petitioners sufficiently showed that Rommel was, at the time of his untimely but much
caused by the defendant, had no earning capacity at the time of his death." lamented death, able-bodied, in good physical and mental state, and a student in good
standing.95 It should be reasonable to assume that Rommel would have finished his schooling
and would turn out to be a useful and productive person had he not died. Under the foregoing
Indeed, damages for loss of earning capacity may be awarded to the heirs of a deceased non-
jurisprudence, the petitioners should be compensated for losing Rommel's power or ability to
working victim simply because earning capacity, not necessarily actual earning, may be lost.
earn. The basis for the computation of earning capacity is not what he would have become or
what he would have wanted to be if not for his untimely death, but the minimum wage in effect at
In Metro Manila Transit Corporation v. Court of Appeals,90 damages for loss of earning capacity the time of his death. The formula for this purpose is:
were granted to the heirs of a third-year high school student of the University of the Philippines
Integrated School who had been killed when she was hit and run over by the petitioner's
Net Earning Capacity = Life Expectancy x [Gross Annual Income less Necessary Living
passenger bus as she crossed Katipunan Avenue in Quezon City. The Court justified the grant
Expenses ]96
in this wise:

Life expectancy is equivalent to 2/3 multiplied by the difference of 80 and the age of the
Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn
deceased. Since Rommel was 18 years of age at the time of his death, his life expectancy was
money. Evidence must be presented that the victim, if not yet employed at the time of death,
41 years. His projected gross annual income, computed based on the minimum wage for
was reasonably certain to complete training for a specific profession. In People v.
workers in the non-agricultural sector in effect at the time of his death,97then fixed at ₱l4.00/day,
Teehankee, no award of compensation for loss of earning capacity was granted to the heirs of a
is ₱5,535.83. Allowing for necessary living expenses of 50% of his projected gross annual
college freshman because there was no sufficient evidence on record to show that the victim
income, his total net earning capacity is ₱l13,484.52.
would eventually become a professional pilot. But compensation should be allowed for loss of
earning capacity resulting from the death of a minor who has not yet commenced employment or
training for a specific profession if sufficient evidence is presented to establish the amount Article 2211 of the Civil Code expressly provides that interest, as a part of damages, may be
thereor.91 (bold underscoring supplied for emphasis) awarded in crimes and quasi-delicts at the discretion of the court. The rate of interest provided
under Article 2209 of the Civil Code is 6% per annum in the absence of stipulation to the
contrary. The legal interest rate of 6% per annum is to be imposed upon the total amounts
In People v. Sanchez,92 damages for loss of earning capacity was also allowed to the heirs of
herein awarded from the time of the judgment of the RTC on May 10, 1991 until finality of
the victims of rape with homicide despite the lack of sufficient evidence to establish what they
judgment.98 Moreover, pursuant to Article 221299 of the Civil Code, the legal interest rate of
would have earned had they not been killed. The Court rationalized its judgment with the
6o/o per annum is to be further imposed on the interest earned up to the time this judgment of
following observations:
the Court becomes final and executory until its full satisfaction.100

Both Sarmenta and Gomez were senior agriculture students at UPLB, the country's leading
Article 2208 of the Civil Code expressly allows the recovery of attorney's fees and expenses of
educational institution in agriculture.1âwphi1 As reasonably assumed by the trial court, both
litigation when exemplary damages have been awarded.1âwphi1 Thus, we uphold the RTC's
victims would have graduated in due course. Undeniably, their untimely death deprived them of
allocation of attorney's fees in favor of the petitioners equivalent to 10% of the total amount to be
their future time and earning capacity. For these deprivation, their heirs are entitled to
recovered, inclusive of the damages for loss of earning capacity and interests, which we
compensation. xxxx. However, considering that Sarmenta and Gomez would have graduated in
consider to be reasonable under the circumstances.
due time from a reputable university, it would not be unreasonable to assume that in 1993 they
would have earned more than the minimum wage. All factors considered, the Court believes that
WHEREFORE, the Court PARTLY AFFIRMS the decision promulgated on March 10, 2004 to
the extent that it absolved COSMOS BOTTLING COMPANY, INC. from
liability; REVERSES and SETS ASIDE the decision as to INTERGAMES,
INC., and REINSTATES as to it the judgment rendered on May 10, 1991 by the Regional Trial
Court, Branch 83, in Quezon City subject to the MODIFICATIONS that INTERGAMES, INC. is
ORDERED TO PAY to the petitioners, in addition to the aw3:rds thereby allowed: (a) the sum of
₱l13,484.52 as damages for the loss of Rommel Abrogar's earning capacity; (b) interest of
6% per annum on the actual damages, moral damages, exemplary damages and loss of earning
capacity reckoned from May 10, 1991 until full payment; (c) compounded interest of 6% per
annum from the finality of this decision until full payment; and (d) costs of suit.

SO ORDERED.
 EN BANC
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the harbor to
the company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used
in this work. The defendant has proved that there were two immediately following one another,
upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of
the rails lay upon two crosspieces or sills secured to the cars, but without side pieces or guards
to prevent them from slipping off. According to the testimony of the plaintiff, the men were either
in the rear of the car or at its sides. According to that defendant, some of them were also in front,
hauling by a rope. At a certain spot at or near the water's edge the track sagged, the tie broke,
the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which
was afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened through the
negligence of the defendant. The detailed description by the defendant's witnesses of the
construction and quality of the track proves that if was up to the general stranded of tramways of
that character, the foundation consisting on land of blocks or crosspieces of wood, by 8 inches
thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right angle
rested stringers of the same thickness, but from 24 to 30 feet in length. On the across the
stringers the parallel with the blocks were the ties to which the tracks were fastened. After the
road reached the water's edge, the blocks or crosspieces were replaced with pilling, capped by
timbers extending from one side to the other. The tracks were each about 2 feet wide and the
two inside rails of the parallel tracks about 18 inches apart. It was admitted that there were no
side pieces or guards on the car; that where no ends of the rails of the track met each other and
also where the stringers joined, there were no fish plates. the defendant has not effectually
overcome the plaintiff's proof that the joints between the rails were immediately above the joints
between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is
admitted in the briefs and in the argument to have been the dislodging of the crosspiece or piling
under the stringer by the water of the bay raised by a recent typhoon. The superintendent of the
company attributed it to the giving way of the block laid in the sand. No effort was made to repair
the injury at the time of the occurrence. According to plaintiffs witnesses, a depression of the
track, varying from one half inch to one inch and a half, was therafter apparent to the eye, and a
fellow workman of the plaintiff swears that the day before the accident he called the attention of
McKenna, the foreman, to it and asked by simply straightening out the crosspiece, resetting the
block under the stringer and renewing the tie, but otherwise leaving the very same timbers as
before. It has not proven that the company inspected the track after the typhoon or had any
proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on
its part in failing either to properly secure the load on iron to vehicles transporting it, or to
skillfully build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair
the roadway as soon as the depression in it became visible. It is upon the failure of the
defendant to repair the weakened track, after notice of its condition, that the judge below based
his judgment.
This case presents many important matters for our decision, and first among them is the
standard of duty which we shall establish in our jurisprudence on the part of employees toward
employees.
The lack or the harshness of legal rules on this subject has led many countries to enact
designed to put these relations on a fair basis in the form of compensation or liability laws or the
institution of insurance. In the absence of special legislation we find no difficulty in so applying
the general principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed by the
provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice
would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction
of regulations, shall cause an injury which, had malice intervened, would have
constituted a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their
servants and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his employer
held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest
of the representative of the company accountable for not repairing the tract, and on his
prosecution a suitable fine should have been imposed, payable primarily by him and secondarily
by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject
to the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
 SEC. 1903. The obligation imposed by the preceding article is demandable, not only
for personal acts and omissions, but also for those of the persons for whom they
should be responsible.
The father, and on his death or incapacity, the mother, is liable for the damages
caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for the
damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damages.
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls
under civil rather than criminal jurisprudence. But the answer may be a broader one. We should
be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such
as is proposed by the defendant, that would rob some of these articles of effect, would shut out
litigants their will from the civil courts, would make the assertion of their rights dependent upon
the selection for prosecution of the proper criminal offender, and render recovery doubtful by
reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though n ever in actual force in these Islands, was formerly given a suppletory
or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was pending the civil was
suspended. According to article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or been expressly reserved by
him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced by only on private complaint, the penal action thereunder should be
extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal
Code on the same subject.
An examination of this topic might be carried much further, but the citations of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided by law. Where an individual is civilly liable
for a negligent act or omission, it is not required that the inured party should seek out a third
person criminally liable whose prosecution must be a condition precedent to the enforcement of
the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are process of
prosecution, or in so far as they determinate the existence of the criminal act from which liability
arises, and his obligation under the civil law and its enforcement in the civil courts is not barred
thereby unless by election of the injured person. Inasmuch as no criminal in question, the
provisions of the Penal Code can not affect this action. This construction renders it unnecessary
to finally determine here whether this subsidiary civil liability in penal actions survived the laws
that fully regulated it or has been abrogated by the American civil and criminal procedure now in
force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1092 and 1093. More than
this, however, it can not be said to fall within the class of acts unpunished by the law, the
consequences of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those and growing out of preexisting
duties of the parties to one another. But were relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104, of the same code. A typical application of the distinction may be
found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to the
passengers out of the contract for passage. while that to that injured bystander would originate
in the negligent act itself. This distinction is thus clearly set forth by Manresa in his commentary
on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be
understood in two difference senses; either as culpa, substantive and independent,
which on account of its origin arises in an obligation between two persons not formerly
bound by any other obligation; or as an incident in the performance of an obligation; or
as already existed, which can not be presumed to exist without the other, and which
increases the liability arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of
this book of the code is devoted to it, it is logical to presume that the reference
contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which we
will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species of negligence
may be somewhat inexactly described as contractual and extra-contractual, the letter being
the culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. This
terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section,
Chapter XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme
court of Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and
June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of
mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the
principles common to the law of both countries, which are lucidly discussed by the leading
French commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon
articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902
and 1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual
obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led
to the discovery of a third basis for liability in an article of he French Code making the possessor
of any object answerable for damage done by it while in his charge. Our law having no
counterpart of this article, applicable to every kind of object, we need consider neither the theory
growing out of it nor that of "professional risk" more recently imposed by express legislation, but
rather adopting the interpretation of our Civil Code above given, find a rule for this case in the
contractual obligation. This contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the employer to provide safe
appliances for the use of the employee, thus closely corresponding to English and American
Law. On these principles it was the duty of the defendant to build and to maintain its track in
reasonably sound condition, so as to protect its workingmen from unnecessary danger. It is plain
that in one respect or the other it failed in its duty, otherwise the accident could not have
occurred; consequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be
excused upon the ground that the negligence leading to the accident was that of a fellow-servant
of the injured man. It is not apparent to us that the intervention of a third person can relieve the
defendant from the performance of its duty nor impose upon the plaintiff the consequences of an
act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-
servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in England by
Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since
been effectually abrogated by "the Employers' Liability Acts" and the "Compensation Law." The
American States which applied it appear to be gradually getting rid of it; for instance, the New
York State legislature of 1906 did away with it in respect to railroad companies, and had in hand
a scheme for its total abolition. It has never found place in the civil law of continental Europe.
(Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more
recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June
28, 1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing
to the accident, to what extent it existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the
boards, either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference
from the testimony. While the method of construction may have been known to the men who had
helped build the road, it was otherwise with the plaintiff who had worked at this job less than two
days. A man may easily walk along a railway without perceiving a displacement of the underlying
timbers. The foreman testified that he knew the state of the track on the day of the accident and
that it was then in good condition, and one Danridge, a witness for the defendant, working on the
same job, swore that he never noticed the depression in the track and never saw any bad place
in it. The sagging of the track this plaintiff did perceive, but that was reported in his hearing to the
foreman who neither promised nor refused to repair it. His lack of caution in continuing at his
work after noticing the slight depression of the rail was not of so gross a nature as to constitute
negligence, barring his recovery under the severe American rule. On this point we accept the
conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the
one rail being lower than then other" and "it does not appear in this case that the plaintiff knew
before the accident occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon
us, because not "plainly and manifestly against the weight of evidence," as those words of
section 497, paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court
of the United States in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction
given by the defendant to its employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore
the findings of the judge below leave the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in
this way, but were expressly directed by the foreman to do so, both the officers of the company
and three of the workmen testify that there was a general prohibition frequently made known to
all the gang against walking by the side of the car, and the foreman swears that he repeated the
prohibition before the starting of this particular load. On this contradiction of proof we think that
the preponderance is in favor of the defendant's contention to the extent of the general order
being made known to the workmen. If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate, although not as its primary
cause. This conclusion presents sharply the question, What effect is to be given such an act of
contributory negligence? Does it defeat a recovery, according to the American rule, or is it to be
taken only in reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his
injury, provided his negligence was slight as compared with that of the defendant, and some
others have accepted the theory of proportional damages, reducing the award to a plaintiff in
proportion to his responsibility for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any negligence, however slight, on the
part of the person injured which is one of the causes proximately contributing to his injury, bars
his recovery. (English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of
the United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in
the person injured; subject to this qualification, which has grown up in recent years
(having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the
contributory negligence of the party injured will not defeat the action if it be shown that
the defendant might, by the exercise of reasonable care and prudence, have avoided
the consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent
or that the negligence of the plaintiff was the immediate cause of the casualty or that the
accident was due to casus fortuitus. Of the first class in the decision of January 26, 1887
(38 Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was
thrown therefrom and killed by the shock following the backing up of the engine. It was held that
the management of the train and engine being in conformity with proper rules of the company,
showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th
of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by
the logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a
fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the
common obligation imposed by the police law of maintaining a guard at the road crossing; the
other, because the act of the deceased in driving over level ground with unobstructed view in
front of a train running at speed, with the engine whistle blowing was the determining cause of
the accident. It is plain that the train was doing nothing but what it had a right to do and that the
only fault lay with the injured man. His negligence was not contributory, it was sole, and was of
such an efficient nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff
sustaining damages was not free from contributory negligence; for instance, the decision of the
14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was
held liable for not furnishing protection to workmen engaged in hanging out flags, when the latter
must have perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed
to his injury as one of its causes, though not the principal one, and we are left to seek the theory
of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the
carelessness of the victim did not civilly relieve the person without whose fault the accident could
not have happened, but that the contributory negligence of the injured man had the effect only of
reducing the damages. The same principle was applied in the case of Recullet, November 10,
1888. and that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite
Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol.
15, 1895, Title Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law,
now embodied in a code following the Code Napoleon, a practice in accord with that of France is
laid down in many cases collected in the annotations to article 1053 of the code edited by
Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence,
volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals,
the highest authority in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English theory
of contributory negligence. Such decisions throw no light upon the doctrines of the civil law.
Elsewhere we find this practice embodied in legislation; for instance, section 2 of article 2398 of
the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured
or in the part of some one else, the indemnification shall be reduced in the first case,
and in the second case it shall be appropriated in proportion to such fault or
negligence as provided in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with
the accident shall stand his damages in proportion to his fault, but when that proportion is
incapable of ascertainment, he shall share the liability equally with the person principally
responsible. The principle of proportional damages appears to be also adopted in article 51 of
the Swiss Code. Even in the United States in admirality jurisdictions, whose principles are
derived from the civil law, common fault in cases of collision have been disposed of not on the
ground of contradictor negligence, but on that of equal loss, the fault of the one part being offset
against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in
favor of the vessel sustaining the greater loss against the other for the excess of her damages
over one-half of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code
of Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of
the principle of contributory negligence as understood in American Law, with which, indeed, it
has little in common. This is a plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the
civil action of the owner against the person liable for the damage is reserved, as well as the
criminal liability which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a
nice balancing of responsibilities and which demanded an inflexible standard as a safeguard
against too ready symphaty for the injured. It was assumed that an exact measure of several
concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain
an action against the other, is, not the wrong of the one is set off against the wrong of
the other; it that the law can not measure how much of the damage suffered is
attributable to the plaintiff's own fault. If he were allowed to recover, it might be that he
would obtain from the other party compensation for hiss own misconduct.
(Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law
has no scales to determine in such cases whose wrongdoing weighed most in the
compound that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review to relax
the vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive,
through the device of granting new trials, unless reduced damages are stipulated for, amounting
to a partial revision of damages by the courts. It appears to us that the control by the court of the
subject matter may be secured on a moral logical basis and its judgment adjusted with greater
nicety to the merits of the litigants through the practice of offsetting their respective
responsibilities. In the civil law system the desirable end is not deemed beyond the capacity of
its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the Q. Well, you have described it here to the court.
stress and counter stress of novel schemers of legislation, we find the theory of damages laid
down in the judgment the most consistent with the history and the principals of our law in these
A. Oh, yes; I knew the condition of the track.
Islands and with its logical development.

Q. You knew its conditions as you have described it here at the time you were
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
working around there?
considered immediate causes of the accident. The test is simple. Distinction must be between
the accident and the injury, between the event itself, without which there could have been no
accident, and those acts of the victim not entering into it, independent of it, but contributing A. Yes, sir.
under review was the displacement of the crosspiece or the failure to replace it. this produced
the event giving occasion for damages — that is, the shinking of the track and the sliding of the
iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, xxx xxx xxx
although it was an element of the damage which came to himself. Had the crosspiece been out
of place wholly or partly thorough his act of omission of duty, the last would have been one of Q. And while operating it from the side it was necessary for you to step from board
the determining causes of the event or accident, for which he would have been responsible. to board on the cross-ties which extended out over the stringers?
Where he contributes to the principal occurrence, as one of its determining factors, he can not
recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may
recover the amount that the defendant responsible for the event should pay for such injury, less A. Yes, sir.
a sum deemed a suitable equivalent for his own imprudence.
Q. And these were very of irregular shape, were they not?
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage
incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we A. They were in pretty bad condition.
deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct
judgment to be entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of
both instances, and ten days hereafter let the case be remanded to the court below for proper xxx xxx xxx
action. So ordered.
Q. And it was not safe to walk along on the outside of these crosspieces?
Arellano, C.J. Torres and Mapa, JJ., concur.
A. It was safe if the car stayed on the track. We didn't try to hold the load on. We
tried to hold the car back, keep it from going too fast, because we knew the track was
in bad condition just here, and going down too fast we could be liable to run off most
any time.

Separate Opinions
Q. You knew the track was in bad condition when you got hold?

WILLARD, J., dissenting:

A. Sure, it was in bad condition.

The knowledge which the plaintiff had in regard to the condition of the track is indicated by his
own evidence. He testified, among other things, as follows: xxx xxx xxx

Q. Now, describe the best you can the character of the track that ran from the Q. And the accident took place at that point where you believed it to be so
place where you loaded the irons from the barge up to the point where you unloaded dangerous?
them on the ground.
A. Yes, sir.
A. — Well, it was pretty bad character.
Q. But you knew it was dangerous?
xxx xxx xxx
A. Why certainly, anybody could see it; but a workingman had to work in those
Q. And you were familiar with the track before that its construction? days or get arrested for a vag here in Manila.

A. Familiar with what? The court below, while it found that the plaintiff knew in a general way of the bad condition of the
track, found that he was not informed of the exact cause of the accident, namely, the washing
away of the large crosspiece laid upon the ground or placed upon the posts as the foundation
upon which the stripers rested. This finding of fact to my mind is plainly and manifestly against
the weight of the evidence. Ellis, a witness for the plaintiff, testified that on the morning of the
accident he called the attention of McKenna, the foreman, to the defective condition of the track
at his precise point where the accident happened. His testimony in part is as follows:
A. I called Mr. McKenna. I showed him the track and told him I didn't think it was
safe working, and that if he didn't fix it he was liable to have an accident; I told him I
thought if he put fish plates on it would it. He said, you keep on fishing around here for
fish plates and you will be fishing for another job the first thing you know." He says,
"You see to much."
xxx xxx xxx
Q. Who else was present at the time you had this conversation with Mr. McKenna?
A. Well, at that conversation as far as I can remember, we were all walking down
the track and I know that McCoy and Mr. Blakes was along at the time. I remember
them two, but we were all walking down the track in a bunch, but I disremember them.
xxx xxx xxx
Q. Was that the exact language that you used, that you wanted some fish plates
put on?
A. No, sir: I told him to look at that track. I says get some fish plates. I says if there
was any fish plates we would fix that.
Q. What did the fish plates have to do with that?
A. It would have strengthened that joint.
Q. Why didn't you put the 8 by 8 which was washed crossways in place?
A. That would have been taken the raising of the track and digging out along this
upright piece and then putting it up again.
The plaintiff himself testified that he was present with Ellis at the time this conversation was had
with McKenna. It thus appears that on the morning in question the plaintiff and McKenna were
standing directly over the place where the accident happened later in the day. The accident was
caused, as the court below found, by the washing away or displacement of the large 8 by 8
piece of timber. This track was constructed as all other tracks are, all of it open work, with no
floor over the ties, and of course see the ground and the entire construction of the road,
including these large 8 by 8 pieces, the long stringers placed thereon, the ties placed on these
stringers, and the rails placed on the ties. The plaintiff himself must have seen that the 8 by 8
piece of timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement was more
markedly apparent even than it would appear from the testimony of the defendant's witnesses.
According to the plaintiff's witnesses, the water at high tide reached the place in question and
these 8 by 8 pieces were therefore not laid upon the ground but were placed upon posts driven
into the ground, the height of the posts at this particular place being, according to the testimony
of the plaintiff's witnesses, from a foot to two feet and a half. As has been said, Ellis testified that
the reason why they did not put the 8 by 8 back in its place was because that would have
required the raising up of the track and digging out along this upright piece and then putting it up
again.
It conclusively appears from the evidence that the plaintiff, before the accident happened, knew
the exact condition of the track and was informed and knew of the defect which caused the
accident. There was no promise on the part of McKenna to repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the side of the car
where he knew that he would be injured by the falling of the rails from the car when they reached
this point in the track where the two stringers were without any support of their ends. He either
should have refused to work at all or he should have placed himself behind the car, on the other
side of it, or in front of it, drawing it with a rope. He was guilty of contributory negligence and is
not entitled to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a case like this is no
defense under the law in force in these Islands. To this proposition I can not agree. The liability
of the defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.
In order to impose such liability upon the defendant, it must appear that its negligence caused
the accident. The reason why contradictory negligence on the part of the plaintiff is a defense in
this class of cases is that the negligence of the defendant did not alone cause the accident. If
nothing but that negligence had existed, the accident would not have happened and, as I
understand it, in every case in which contradictory negligence is a defense it is made so
because the negligence of the plaintiff is the cause of the accident, to this extent, that if the
plaintiff had not been negligent the accident would not have happened, although the defendant
was also negligent. In other words, the negligence of the defendant is not alone sufficient to
cause the accident. It requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule
of the Roman law was: "Quod quis ex culap sua damnum sentit, no intelligitur damnum sentire."
(Digest, book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his
own fault, and that he can not demand reparation therefor from another. (Law 25, tit.
5, partida 3.)
And they even said that when a man received an injury through his own acts, the
grievance should be against himself and not against another. (Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was
himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of
February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th of March,
1876, and the 6th of October, 1882. These cases do not throw much light upon the subject. The
judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point.
In that case the supreme court of Spain said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the injury
thereby caused there exists the relation of cause and effect; but in the injury caused
 should not be the result of acts or omissions of a third party, the latter has no
obligation to repair the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was
the negligence of the injured person party himself.

Found the reasons above stated, and the court below having found that the death of
the deceased was due to his own imprudence, and not therefore due to the absence
of a guard at the grade crossing where the accident occurred, it seems clear that court
in acquitting the railroad company of the complaint filed by the widow did not violate
the provisions of the aforesaid article of the Civil Code.

For the same reason, although the authority granted to the railroad company to open
the grade crossing without a special guard was nullified by the subsequent
promulgation of the railroad police law and the regulations for the execution of the
same, the result would be identical, leaving one of the grounds upon which the
judgment of acquittal is based, to wit, that the accident was caused by the imprudence
of the injured party himself, unaffected.

It appears that the accident in this case took place at a grade crossing where, according to the
claim of the plaintiff, it was the duty of the railroad company to maintain husband was injured by
a train at this crossing, his negligence contributing to the injury according to the ruling of the
court below. This judgment, then, amounts to a holding that a contributory negligence is a
defense according to the law of Spain. (See also judgment of the 21st of October, 1903, vol. 96
p. 400, Jurisprudencia Civil.)

Although in the Civil Code there is no express provision upon the subject, in the Code of
Commerce there is found a distinct declaration upon it in reference to damages caused by
collission at sea. Article 827 of the Code of Commerce is as follows:

If both vessels may be blamed for the collission, each one shall for liable for his own
damages, and both shall jointly responsible for the loss and damages suffered to their
cargoes.

That article is an express recognition of the fact that in collision cases contributory negligence is
a defense,

I do not think that this court is justified in view of the Roman law, of the provisions of
the Partidas, of the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in
the absence of any declaration upon the subject in the Civil Code, in saying that it was the
intention rule announced in the majority opinion, a rule dimetrically opposed to that put in force
by the Code of Commerce.

The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory
negligence is not a defense seems to be that such is the holding of the later French decisions.

As to whether, if any liability existed in this case, it would be necessary in accordance with the
provisions of the Penal Code, or primary, in accordance with the provision of the Civil Code, I
express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the complaint.

Carson, J., concurs.

 EN BANC

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

JUAN BERNARDO, plaintiff-appellant,

vs.
M. B. LEGASPI, defendant-appellee.

Roman de Jesus for appellant.

No appearance for appellee.

MORELAND, J.:

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

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

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

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

Arellano, C.J., Torres, Johnson, Carson, Trent and Araullo, JJ., concur.
 EN BANC
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF
DOMINGA ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-
appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which
affirmed that of the Court of First Instance of Manila dismissing petitioners' second amended
complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in
the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of
Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank
truck into the underground storage, right at the opening of the receiving tank where the nozzle of
the hose was inserted. The fire spread to and burned several neighboring houses, including the
personal properties and effects inside them. Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and
the second as its agent in charge of operation. Negligence on the part of both of them was
attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and that
respondents had exercised due care in the premises and with respect to the supervision of their
employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by
the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of
the Philippines. Portions of the first two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while
Leandro Flores was transferring gasoline from a tank truck, plate No. T-
5292 into the underground tank of the Caltex Gasoline Station located at the
corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino
lighted a cigarette and threw the burning match stick near the main valve of
the said underground tank. Due to the gasoline fumes, fire suddenly blazed.
Quick action of Leandro Flores in pulling off the gasoline hose connecting
the truck with the underground tank prevented a terrific explosion. However,
the flames scattered due to the hose from which the gasoline was spouting.
It burned the truck and the following accessorias and residences.
2. The Fire Department report: —
In connection with their allegation that the premises was (sic) subleased for the
installation of a coca-cola and cigarette stand, the complainants furnished this Office a
copy of a photograph taken during the fire and which is submitted herewith. it appears
in this picture that there are in the premises a coca-cola cooler and a rack which
according to information gathered in the neighborhood contained cigarettes and
matches, installed between the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding
the history of the gasoline station and what the chief of the fire department had told him on the
same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of respondents; secondly, that with
respect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as witness but respondents waived
their right to cross-examine him although they had the opportunity to do so; and thirdly, that in
any event the said reports are admissible as an exception to the hearsay rule under section 35
of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of September
17, 1953 (pp. 167-170) shows that the reports in question, when offered as evidence, were
objected to by counsel for each of respondents on the ground that they were hearsay and that
they were "irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits
J, K, K-5 and X-6 were admitted without objection; the admission of the others, including the
disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not
examined and he did not testify as to the facts mentioned in his alleged report (signed by
Detective Zapanta). All he said was that he was one of those who investigated "the location of
the fire and, if possible, gather witnesses as to the occurrence, and that he brought the report
with him. There was nothing, therefore, on which he need be cross-examined; and the contents
of the report, as to which he did not testify, did not thereby become competent evidence. And
even if he had testified, his testimony would still have been objectionable as far as information
gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that
"entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was
made by a public officer, or by another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must have been acquired by him
personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957]
p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material
facts recited in the reports as to the cause and circumstances of the fire were not within the
personal knowledge of the officers who conducted the investigation. Was knowledge of such
facts, however, acquired by them through official information? As to some facts the sources
thereof are not even identified. Others are attributed to Leopoldo Medina, referred to as an
employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck
from which gasoline was being transferred at the time to the underground tank of the station;
and to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any
reason as to the origin of the fire. To qualify their statements as "official information" acquired by
the officers who prepared the reports, the persons who made the statements not only must have
personal knowledge of the facts stated but must have the duty to give such statements for
record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated
therein were not acquired by the reporting officers through official information, not having been
given by the informants pursuant to any duty to do so.
plaintiff had every right to be on the highway, and the electric wire was under the sole
control of defendant company. In the ordinary course of events, electric wires do not
part suddenly in fair weather and injure people, unless they are subjected to unusual
strain and stress or there are defects in their installation, maintenance and
supervision; just as barrels do not ordinarily roll out of the warehouse windows to
injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722;
159 Eng. Reprint 299, the leading case that established that rule). Consequently, in
the absence of contributory negligence (which is admittedly not present), the fact that
the wire snapped suffices to raise a reasonable presumption of negligence in its
installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if
there are any facts inconsistent with negligence, it is for the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on
The next question is whether or not, without proof as to the cause and origin of the fire, the
the Supreme Court, but we do not consider this a reason for not applying the particular doctrine
doctrine of res ipsa loquitur should apply so as to presume negligence on the part of appellees.
of res ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in the storage
Both the trial court and the appellate court refused to apply the doctrine in the instant case on
and sale of which extreme care must be taken. On the other hand, fire is not considered a
the grounds that "as to (its) applicability ... in the Philippines, there seems to he nothing definite,"
fortuitous event, as it arises almost invariably from some act of man. A case strikingly similar to
and that while the rules do not prohibit its adoption in appropriate cases, "in the case at bar,
the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:
however, we find no practical use for such doctrine." The question deserves more than such
summary dismissal. The doctrine has actually been applied in this jurisdiction, in the case
of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, Arthur O. Jones is the owner of a building in the city of Hammon which in the year
1949), wherein the decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes 1934 was leased to the Shell Petroleum Corporation for a gasoline filling station. On
now a member of the Supreme Court. October 8, 1934, during the term of the lease, while gasoline was being transferred
from the tank wagon, also operated by the Shell Petroleum Corporation, to the
underground tank of the station, a fire started with resulting damages to the building
The facts of that case are stated in the decision as follows:
owned by Jones. Alleging that the damages to his building amounted to $516.95,
Jones sued the Shell Petroleum Corporation for the recovery of that amount. The
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions judge of the district court, after hearing the testimony, concluded that plaintiff was
were loading grass between the municipalities of Bay and Calauan, in the province of entitled to a recovery and rendered judgment in his favor for $427.82. The Court of
Laguna, with clear weather and without any wind blowing, an electric transmission Appeals for the First Circuit reversed this judgment, on the ground the testimony failed
wire, installed and maintained by the defendant Philippine Power and Development to show with reasonable certainty any negligence on the part of the Shell Petroleum
Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ
of the plaintiff as he was about to board the truck. As a result, plaintiff received the full of Review which was granted, and the case is now before us for decision.1äwphï1.ñët
shock of 4,400 volts carried by the wire and was knocked unconscious to the ground.
The electric charge coursed through his body and caused extensive and serious
In resolving the issue of negligence, the Supreme Court of Louisiana held:
multiple burns from skull to legs, leaving the bone exposed in some parts and causing
intense pain and wounds that were not completely healed when the case was tried on
June 18, 1947, over one year after the mishap. Plaintiff's petition contains two distinct charges of negligence — one relating to the
cause of the fire and the other relating to the spreading of the gasoline about the filling
station.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any
specific act of negligence, but the appellate court overruled the defense under the doctrine of res
ipsa loquitur. The court said: Other than an expert to assess the damages caused plaintiff's building by the fire, no
witnesses were placed on the stand by the defendant.
The first point is directed against the sufficiency of plaintiff's evidence to place
appellant on its defense. While it is the rule, as contended by the appellant, that in Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the established by the record that the filling station and the tank truck were under the
plaintiff to establish that the proximate cause of his injury was the negligence of the control of the defendant and operated by its agents or employees. We further find from
defendant, it is also a recognized principal that "where the thing which caused injury, the uncontradicted testimony of plaintiff's witnesses that fire started in the
without fault of the injured person, is under the exclusive control of the defendant and underground tank attached to the filling station while it was being filled from the tank
the injury is such as in the ordinary course of things does not occur if he having such truck and while both the tank and the truck were in charge of and being operated by
control use proper care, it affords reasonable evidence, in the absence of the the agents or employees of the defendant, extended to the hose and tank truck, and
explanation, that the injury arose from defendant's want of care." was communicated from the burning hose, tank truck, and escaping gasoline to the
building owned by the plaintiff.
And the burden of evidence is shifted to him to establish that he has observed due
care and diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. Predicated on these circumstances and the further circumstance of defendant's failure
680.) This rule is known by the name of res ipsa loquitur (the transaction speaks for to explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff
itself), and is peculiarly applicable to the case at bar, where it is unquestioned that the
 has evoked the doctrine of res ipsa loquitur. There are many cases in which the
doctrine may be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the ordinary
course of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in absence of explanation by defendant,
that the accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted
by the courts of last resort. Some of the cases in this jurisdiction in which the doctrine
has been applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So.
977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101,
100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents
v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline
station, with all its appliances, equipment and employees, was under the control of appellees. A
fire occurred therein and spread to and burned the neighboring houses. The persons who knew
or could have known how the fire started were appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened
because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1
Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station
complained of occupies a lot approximately 10 m x 10 m at the southwest corner of
Rizal Avenue and Antipolo. The location is within a very busy business district near
the Obrero Market, a railroad crossing and very thickly populated neighborhood where
a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and
this constitute a secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls
south and west adjoining the neighborhood are only 2-1/2 meters high at most and
cannot avoid the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is
also used by its operator as a garage and repair shop for his fleet of taxicabs
numbering ten or more, adding another risk to the possible outbreak of fire at this
already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties
on the basis of his own personal observation of the facts reported, may properly be considered
as an exception to the hearsay rule. These facts, descriptive of the location and objective
circumstances surrounding the operation of the gasoline station in question, strengthen the
presumption of negligence under the doctrine of res ipsa loquitur, since on their face they called
for more stringent measures of caution than those which would satisfy the standard of due
diligence under ordinary circumstances. There is no more eloquent demonstration of this than
the statement of Leandro Flores before the police investigator. Flores was the driver of the
gasoline tank wagon who, alone and without assistance, was transferring the contents thereof
into the underground storage when the fire broke out. He said: "Before loading the underground
tank there were no people, but while the loading was going on, there were people who went to
drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the
underground tank." He added that when the tank was almost filled he went to the tank truck to
close the valve, and while he had his back turned to the "manhole" he, heard someone shout
"fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for
another negligent omission on the part of defendants, namely, their failure to provide a concrete
wall high enough to prevent the flames from leaping over it. As it was the concrete wall was only
2-1/2 meters high, and beyond that height it consisted merely of galvanized iron sheets, which
would predictably crumple and melt when subjected to intense heat. Defendants' negligence,
therefore, was not only with respect to the cause of the fire but also with respect to the spread
thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second amended
complaint that "the fire was caused through the acts of a stranger who, without authority, or
permission of answering defendant, passed through the gasoline station and negligently threw a
lighted match in the premises." No evidence on this point was adduced, but assuming the
allegation to be true — certainly any unfavorable inference from the admission may be taken
against Boquiren — it does not extenuate his negligence. A decision of the Supreme Court of
Texas, upon facts analogous to those of the present case, states the rule which we find
acceptable here. "It is the rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate with a danger involved ...
we think it is the generally accepted rule as applied to torts that 'if the effects of the actor's
negligent conduct actively and continuously operate to bring about harm to another, the fact that
the active and substantially simultaneous operation of the effects of a third person's innocent,
tortious or criminal act is also a substantial factor in bringing about the harm, does not protect
the actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in
another way, "The intention of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas
Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants.
This issue depends on whether Boquiren was an independent contractor, as held by the Court of
Appeals, or an agent of Caltex. This question, in the light of the facts not controverted, is one of
law and hence may be passed upon by this Court. These facts are: (1) Boquiren made an
admission that he was an agent of Caltex; (2) at the time of the fire Caltex owned the gasoline
station and all the equipment therein; (3) Caltex exercised control over Boquiren in the
management of the state; (4) the delivery truck used in delivering gasoline to the station had the
name of CALTEX painted on it; and (5) the license to store gasoline at the station was in the
name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5
Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he directed
one of his drivers to remove gasoline from the truck into the tank and alleged that the "alleged
driver, if one there was, was not in his employ, the driver being an employee of the Caltex (Phil.)
Inc. and/or the owners of the gasoline station." It is true that Boquiren later on amended his
answer, and that among the changes was one to the effect that he was not acting as agent of
Caltex. But then again, in his motion to dismiss appellants' second amended complaint the
ground alleged was that it stated no cause of action since under the allegations thereof he was
merely acting as agent of Caltex, such that he could not have incurred personal liability. A
motion to dismiss on this ground is deemed to be an admission of the facts alleged in the
complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that
the business conducted at the service station in question was owned and operated by Boquiren.
But Caltex did not present any contract with Boquiren that would reveal the nature of their
relationship at the time of the fire. There must have been one in existence at that time. Instead,
what was presented was a license agreement manifestly tailored for purposes of this case, since
it was entered into shortly before the expiration of the one-year period it was intended to
operate. This so-called license agreement (Exhibit 5-Caltex) was executed on November 29,
1948, but made effective as of January 1, 1948 so as to cover the date of the fire, namely,
March 18, 1948. This retroactivity provision is quite significant, and gives rise to the conclusion
that it was designed precisely to free Caltex from any responsibility with respect to the fire, as
shown by the clause that Caltex "shall not be liable for any injury to person or property while in
the property herein licensed, it being understood and agreed that LICENSEE (Boquiren) is not
an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an
independent contractor. Under that agreement Boquiren would pay Caltex the purely nominal
sum of P1.00 for the use of the premises and all the equipment therein. He could sell only Caltex
Products. Maintenance of the station and its equipment was subject to the approval, in other
words control, of Caltex. Boquiren could not assign or transfer his rights as licensee without the
consent of Caltex. The license agreement was supposed to be from January 1, 1948 to
December 31, 1948, and thereafter until terminated by Caltex upon two days prior written notice.
Caltex could at any time cancel and terminate the agreement in case Boquiren ceased to sell
Caltex products, or did not conduct the business with due diligence, in the judgment of Caltex.
Termination of the contract was therefore a right granted only to Caltex but not to Boquiren.
These provisions of the contract show the extent of the control of Caltex over Boquiren. The
control was such that the latter was virtually an employee of the former.
The written contract was apparently drawn for the purpose of creating the apparent
relationship of employer and independent contractor, and of avoiding liability for the
negligence of the employees about the station; but the company was not satisfied to
allow such relationship to exist. The evidence shows that it immediately assumed
control, and proceeded to direct the method by which the work contracted for should
be performed. By reserving the right to terminate the contract at will, it retained the
means of compelling submission to its orders. Having elected to assume control and
to direct the means and methods by which the work has to be performed, it must be
held liable for the negligence of those performing service under its direction. We think
the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company
v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash
invoices were presented to show that Boquiren had bought said gasoline from Caltex. Neither
was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount
of P2,000.00 collected by them on the insurance of the house. The deduction is now challenged
as erroneous on the ground that Article 2207 of the New Civil Code, which provides for the
subrogation of the insurer to the rights of the insured, was not yet in effect when the loss took
place. However, regardless of the silence of the law on this point at that time, the amount that
should be recovered be measured by the damages actually suffered, otherwise the principle
prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of Ong
P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property
destroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children that said
property was worth P4,000.00. We agree that the court erred, since it is of common knowledge
that the assessment for taxation purposes is not an accurate gauge of fair market value, and in
this case should not prevail over positive evidence of such value. The heirs of Ong are therefore
entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable
solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and
P10,000.00, respectively, with interest from the filing of the complaint, and costs.

Taking into consideration the fact that the operator owed his position to the company
and the latter could remove him or terminate his services at will; that the service
station belonged to the company and bore its tradename and the operator sold only
the products of the company; that the equipment used by the operator belonged to the
company and were just loaned to the operator and the company took charge of their
repair and maintenance; that an employee of the company supervised the operator
and conducted periodic inspection of the company's gasoline and service station; that
the price of the products sold by the operator was fixed by the company and not by the
operator; and that the receipts signed by the operator indicated that he was a mere
agent, the finding of the Court of Appeals that the operator was an agent of the
company and not an independent contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon
the name or title given it by the contracting parties, should thereby a controversy as to
what they really had intended to enter into, but the way the contracting parties do or
perform their respective obligations stipulated or agreed upon may be shown and
inquired into, and should such performance conflict with the name or title given the
contract by the parties, the former must prevail over the latter. (Shell Company of the
Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil.
757).
 EN BANC
G.R. No. L-21749 September 29, 1967
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUZON STEVEDORING CORPORATION, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
H. San Luis and L.V. Simbulan for defendant-appellant.
REYES, J.B.L., J.:
The present case comes by direct appeal from a decision of the Court of First Instance of Manila
(Case No. 44572) adjudging the defendant-appellant, Luzon Stevedoring Corporation, liable in
damages to the plaintiff-appellee Republic of the Philippines.
In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring
Corporation was being towed down the Pasig river by tugboats "Bangus" and "Barbero" 1 also
belonging to the same corporation, when the barge rammed against one of the wooden piles of
the Nagtahan bailey bridge, smashing the posts and causing the bridge to list. The river, at the
time, was swollen and the current swift, on account of the heavy downpour of Manila and the
surrounding provinces on August 15 and 16, 1960.
Sued by the Republic of the Philippines for actual and consequential damage caused by its
employees, amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon
Stevedoring Corporation disclaimed liability therefor, on the grounds that it had exercised due
diligence in the selection and supervision of its employees; that the damages to the bridge were
caused by force majeure; that plaintiff has no capacity to sue; and that the Nagtahan bailey
bridge is an obstruction to navigation.
After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable for
the damage caused by its employees and ordering it to pay to plaintiff the actual cost of the
repair of the Nagtahan bailey bridge which amounted to P192,561.72, with legal interest thereon
from the date of the filing of the complaint.
Defendant appealed directly to this Court assigning the following errors allegedly committed by
the court a quo, to wit:
I — The lower court erred in not holding that the herein defendant-appellant had
exercised the diligence required of it in the selection and supervision of its personnel
to prevent damage or injury to others.1awphîl.nèt
II — The lower court erred in not holding that the ramming of the Nagtahan bailey
bridge by barge L-1892 was caused by force majeure.
III — The lower court erred in not holding that the Nagtahan bailey bridge is an
obstruction, if not a menace, to navigation in the Pasig river.
IV — The lower court erred in not blaming the damage sustained by the Nagtahan
bailey bridge to the improper placement of the dolphins.
V — The lower court erred in granting plaintiff's motion to adduce further evidence in
chief after it has rested its case.
VI — The lower court erred in finding the plaintiff entitled to the amount of
P192,561.72 for damages which is clearly exorbitant and without any factual basis.
However, it must be recalled that the established rule in this jurisdiction is that when a party
appeals directly to the Supreme Court, and submits his case there for decision, he is deemed to
have waived the right to dispute any finding of fact made by the trial Court. The only questions
that may be raised are those of law (Savellano vs. Diaz, L-17441, July 31, 1963; Aballe vs.
Santiago, L-16307, April 30, 1963; G.S.I.S. vs. Cloribel, L-22236, June 22, 1965). A converso, a
party who resorts to the Court of Appeals, and submits his case for decision there, is barred from
contending later that his claim was beyond the jurisdiction of the aforesaid Court. The reason is
that a contrary rule would encourage the undesirable practice of appellants' submitting their
cases for decision to either court in expectation of favorable judgment, but with intent of
attacking its jurisdiction should the decision be unfavorable (Tyson Tan, et al. vs. Filipinas
Compañia de Seguros) et al., L-10096, Res. on Motion to Reconsider, March 23, 1966).
Consequently, we are limited in this appeal to the issues of law raised in the appellant's brief.
Taking the aforesaid rules into account, it can be seen that the only reviewable issues in this
appeal are reduced to two:
1) Whether or not the collision of appellant's barge with the supports or piers of the
Nagtahan bridge was in law caused by fortuitous event or force majeure, and
2) Whether or not it was error for the Court to have permitted the plaintiff-appellee to
introduce additional evidence of damages after said party had rested its case.
As to the first question, considering that the Nagtahan bridge was an immovable and stationary
object and uncontrovertedly provided with adequate openings for the passage of water craft,
including barges like of appellant's, it is undeniable that the unusual event that the barge,
exclusively controlled by appellant, rammed the bridge supports raises a presumption of
negligence on the part of appellant or its employees manning the barge or the tugs that towed it.
For in the ordinary course of events, such a thing does not happen if proper care is used. In
Anglo American Jurisprudence, the inference arises by what is known as the "res ipsa loquitur"
rule (Scott vs. London Docks Co., 2 H & C 596; San Juan Light & Transit Co. vs. Requena, 224
U.S. 89, 56 L. Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149 N.W. 299; Bryne vs. Great
Atlantic & Pacific Tea Co., 269 Mass. 130; 168 N.E. 540; Gribsby vs. Smith, 146 S.W. 2d 719).
The appellant strongly stresses the precautions taken by it on the day in question: that it
assigned two of its most powerful tugboats to tow down river its barge L-1892; that it assigned to
the task the more competent and experienced among its patrons, had the towlines, engines and
equipment double-checked and inspected; that it instructed its patrons to take extra precautions;
and concludes that it had done all it was called to do, and that the accident, therefore, should be
held due to force majeure or fortuitous event.
These very precautions, however, completely destroy the appellant's defense. For caso
fortuito or force majeure(which in law are identical in so far as they exempt an obligor from
liability)2 by definition, are extraordinary events not foreseeable or avoidable, "events that could
not be foreseen, or which, though foreseen, were inevitable" (Art. 1174, Civ. Code of the
Philippines). It is, therefore, not enough that the event should not have been foreseen or
anticipated, as is commonly believed, but it must be one impossible to foresee or to avoid. The
mere difficulty to foresee the happening is not impossibility to foresee the same: "un hecho no
constituye caso fortuito por la sola circunstancia de que su existencia haga mas dificil o mas
onerosa la accion diligente del presento ofensor" (Peirano Facio, Responsibilidad Extra-
contractual, p. 465; Mazeaud Trait de la Responsibilite Civil, Vol. 2, sec. 1569). The very
measures adopted by appellant prove that the possibility of danger was not only foreseeable, but
actually foreseen, and was not caso fortuito.

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

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

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

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

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

WHEREFORE, finding no error in the decision of the lower Court appealed from, the same is
hereby affirmed. Costs against the defendant-appellant.
 THIRD DIVISION Industrial Insurance later filed a complaint against Schmitz Transport, TVI, and Black Sea throu
representative Inchcape (the defendants) before the RTC of Manila, for the recovery of the amount it p
Little Giant plus adjustment fees, attorneys fees, and litigation expenses.[16]

Industrial Insurance faulted the defendants for undertaking the unloading of the cargoes while typ
[G.R. No. 150255. April 22, 2005] signal No. 1 was raised in Metro Manila.[17]

By Decision of November 24, 1997, Branch 21 of the RTC held all the defendants negligent for unlo
the cargoes outside of the breakwater notwithstanding the storm signal. [18] The dispositive portion of the de
reads:
SCHMITZ TRANSPORT & BROKERAGE CORPORATION, petitioner, vs. TRANSPORT VENTURE, INC.,
INDUSTRIAL INSURANCE COMPANY, LTD., and BLACK SEA SHIPPING AND DODWELLWHEREFORE,
now premises considered, the Court renders judgment in favor of the plaintiff, ordering the defen
INCHCAPE SHIPPING SERVICES, respondents. to pay plaintiff jointly and severally the sum of P5,246,113.11 with interest from the date the complaint wa
until fully satisfied, as well as the sum of P5,000.00 representing the adjustment fee plus the sum of 20%
DECISION amount recoverable from the defendants as attorneys fees plus the costs of suit. The counterclaims and
claims of defendants are hereby DISMISSED for lack of [m]erit.[19]
CARPIO-MORALES, J.:
To the trial courts decision, the defendants Schmitz Transport and TVI filed a joint motio
On petition for review is the June 27, 2001 Decision[1] of the Court of Appeals, as well as reconsideration
its assailing the finding that they are common carriers and the award of excessive attorneys fe
Resolution[2] dated September 28, 2001 denying the motion for reconsideration, which affirmed that of Branchmore21than P1,000,000. And they argued that they were not motivated by gross or evident bad faith and th
incident was caused by a fortuitous event. [20]
of the Regional Trial Court (RTC) of Manila in Civil Case No. 92-63132[3] holding petitioner Schmitz Transport
Brokerage Corporation (Schmitz Transport), together with Black Sea Shipping Corporation (Black Sea), [21]
represented by its ship agent Inchcape Shipping Inc. (Inchcape), and Transport Venture (TVI), solidarily liable forBy resolution of February 4, 1998, the trial court denied the motion for reconsideration.
the loss of 37 hot rolled steel sheets in coil that were washed overboard a barge. All the defendants appealed to the Court of Appeals which, by decision of June 27, 2001, affirmed i
On September 25, 1991, SYTCO Pte Ltd. Singapore shipped from the port of Ilyichevsk, Russia on the decision of the trial court, [22] it finding that all the defendants were common carriers Black Sea and T
board
M/V Alexander Saveliev (a vessel of Russian registry and owned by Black Sea) 545 hot rolled steel sheets engaging
in coil in the transport of goods and cargoes over the seas as a regular business and not as an iso
weighing 6,992,450 metric tons. transaction,[23] and Schmitz Transport for entering into a contract with Little Giant to transport the cargoes
ship to port for a fee.[24]
The cargoes, which were to be discharged at the port of Manila in favor of the consignee, Little Giant Steel
Pipe Corporation (Little Giant),[4] were insured against all risks with Industrial Insurance Company Ltd. (IndustrialIn holding all the defendants solidarily liable, the appellate court ruled that each one was essential
Insurance) under Marine Policy No. M-91-3747-TIS.[5] that without each others contributory negligence the incident would not have happened and so much so th
person principally liable cannot be distinguished with sufficient accuracy. [25]
The vessel arrived at the port of Manila on October 24, 1991 and the Philippine Ports Authority (PPA)
assigned it a place of berth at the outside breakwater at the Manila South Harbor. [6] In discrediting the defense of fortuitous event, the appellate court held that although defendants obv
had nothing to do with the force of nature, they however had control of where to anchor the vessel, w
Schmitz Transport, whose services the consignee engaged to secure the requisite clearances, to receive discharge will take place and even when the discharging will commence. [26]
the cargoes from the shipside, and to deliver them to its (the consignees) warehouse at Cainta, Rizal, [7] in turn
engaged the services of TVI to send a barge and tugboat at shipside. The defendants respective motions for reconsideration having been denied by Resolution [27] of Septe
28, 2001, Schmitz Transport (hereinafter referred to as petitioner) filed the present petition against TVI, Ind
On October 26, 1991, around 4:30 p.m., TVIs tugboat Lailani towed the barge Erika V to shipside. [8] Insurance and Black Sea.

By 7:00 p.m. also of October 26, 1991, the tugboat, after positioning the barge alongside the vessel, left Petitioner asserts that in chartering the barge and tugboat of TVI, it was acting for its principal, cons
and returned to the port terminal.[9] At 9:00 p.m., arrastre operator Ocean Terminal Services Inc. commenced LittletoGiant, hence, the transportation contract was by and between Little Giant and TVI. [28]
unload 37 of the 545 coils from the vessel unto the barge.
By Resolution of January 23, 2002, herein respondents Industrial Insurance, Black Sea, and TVI
[29]
By 12:30 a.m. of October 27, 1991 during which the weather condition had become inclement duerequired to an to file their respective Comments.
[10]
approaching storm, the unloading unto the barge of the 37 coils was accomplished. No tugboat pulled the
barge back to the pier, however. By its Comment, Black Sea argued that the cargoes were received by the consignee through petitio
good order, hence, it cannot be faulted, it having had no control and supervision thereover. [30]
At around 5:30 a.m. of October 27, 1991, due to strong waves, [11] the crew of the barge abandoned it and
transferred to the vessel. The barge pitched and rolled with the waves and eventually capsized, washing the 37 For its part, TVI maintained that it acted as a passive [31] party as it merely received the cargoes
transferred
coils into the sea.[12] At 7:00 a.m., a tugboat finally arrived to pull the already empty and damaged barge back to them unto the barge upon the instruction of petitioner.
the pier.[13]
In issue then are:
Earnest efforts on the part of both the consignee Little Giant and Industrial Insurance to recover the lost(1) Whether the loss of the cargoes was due to a fortuitous event, independent of any act of negligen
cargoes proved futile.[14] the part of petitioner Black Sea and TVI, and
Little Giant thus filed a formal claim against Industrial Insurance which paid it the amount
(2) If there was negligence, whether liability for the loss may attach to Black Sea, petitioner and TVI.
of P5,246,113.11. Little Giant thereupon executed a subrogation receipt [15] in favor of Industrial Insurance.
 When a fortuitous event occurs, Article 1174 of the Civil Code absolves any party from any and all liability
arising therefrom:
ART. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or
when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events
which could not be foreseen, or which though foreseen, were inevitable.
Mr. Aro: Well, I oversee the entire operation of the brokerage and transport business o
company. I also handle the various division heads of the company for operation matters
all other related functions that the President may assign to me from time to time, Sir.
Q: Now, in connection [with] your duties and functions as you mentioned, will you please te
Honorable Court if you came to know the company by the name Little Giant Steel
Corporation?

A: Yes, Sir. Actually, we are the brokerage firm of that Company.

In order, to be considered a fortuitous event, however, (1) the cause of the unforeseen and unexpected
occurrence, or the failure of the debtor to comply with his obligation, must be independent of human will; (2) it Q: And since when have you been the brokerage firm of that company, if you can recall?
must be impossible to foresee the event which constitute the caso fortuito, or if it can be foreseen it must be
impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his
obligation in any manner; and (4) the obligor must be free from any participation in the aggravation of the A: Since 1990, Sir.
injury
resulting to the creditor.[32]
Q: Now, you said that you are the brokerage firm of this Company. What work or duty di
[T]he principle embodied in the act of God doctrine strictly requires that the act must be occasioned solely by the perform in behalf of this company?
violence of nature. Human intervention is to be excluded from creating or entering into the cause of the mischief.
When the effect is found to be in part the result of the participation of man, whether due to his active intervention A: We handled the releases (sic) of their cargo[es] from the Bureau of Customs. We [are] al
or neglect or failure to act, the whole occurrence is then humanized and removed from the rules applicable to the charged of the delivery of the goods to their warehouses. We also handled the clearanc
acts of God.[33] their shipment at the Bureau of Customs, Sir.

The appellate court, in affirming the finding of the trial court that human intervention in the form of
contributory negligence by all the defendants resulted to the loss of the cargoes, [34] held that unloading outside
the breakwater, instead of inside the breakwater, while a storm signal was up constitutes negligence. [35] It thus
concluded that the proximate cause of the loss was Black Seas negligence in deciding to unload the cargoes at
an unsafe place and while a typhoon was approaching.[36]
From a review of the records of the case, there is no indication that there was greater risk in loading the
cargoes outside the breakwater. As the defendants proffered, the weather on October 26, 1991 remained normal
with moderate sea condition such that port operations continued and proceeded normally.[37]
[38]
The weather data report, furnished and verified by the Chief of the Climate Data Section of PAG-ASA
and marked as a common exhibit of the parties, states that while typhoon signal No. 1 was hoisted over Metro
Manila on October 23-31, 1991, the sea condition at the port of Manila at 5:00 p.m. - 11:00 p.m. of October 26,
1991 was moderate. It cannot, therefore, be said that the defendants were negligent in not unloading the
cargoes upon the barge on October 26, 1991 inside the breakwater.
That no tugboat towed back the barge to the pier after the cargoes were completely loaded by 12:30 in the
morning[39] is, however, a material fact which the appellate court failed to properly consider and appreciate [40] the
proximate cause of the loss of the cargoes. Had the barge been towed back promptly to the pier, the
deteriorating sea conditions notwithstanding, the loss could have been avoided. But the barge was left floating in
open sea until big waves set in at 5:30 a.m., causing it to sink along with the cargoes.[41] The loss thus falls
outside the act of God doctrine.
The proximate cause of the loss having been determined, who among the parties is/are responsible
therefor?
Contrary to petitioners insistence, this Court, as did the appellate court, finds that petitioner is a common
carrier. For it undertook to transport the cargoes from the shipside of M/V Alexander Saveliev to the consignees
warehouse at Cainta, Rizal. As the appellate court put it, as long as a person or corporation holds [itself] to the
public for the purpose of transporting goods as [a] business, [it] is already considered a common carrier
regardless if [it] owns the vehicle to be used or has to hire one.[42] That petitioner is a common carrier, the
testimony of its own Vice-President and General Manager Noel Aro that part of the services it offers to its clients It is settled that under a given set of facts, a customs broker may be regarded
as a brokerage firm includes the transportation of cargoes reflects so. this Court, in A.F. Sanchez Brokerage, Inc. v. The Honorable Court of Appeals,[44] held:
xxx
Q: Now, what precisely [was] your agreement with this Little Giant Steel Pipe Corporation
regards to this shipment? What work did you do with this shipment?
A: We handled the unloading of the cargo[es] from vessel to lighter and then the delivery o
cargo[es] from lighter to BASECO then to the truck and to the warehouse, Sir.
Q: Now, in connection with this work which you are doing, Mr. Witness, you are suppos
perform, what equipment do (sic) you require or did you use in order to effect this unloa
transfer and delivery to the warehouse?
A: Actually, we used the barges for the ship side operations, this unloading [from] vessel to li
and on this we hired or we sub-contracted with [T]ransport Ventures, Inc. which [wa
charged (sic) of the barges. Also, in BASECO compound we are leasing cranes to hav
cargo unloaded from the barge to trucks, [and] then we used trucks to deliver [the cargo
the consignees warehouse, Sir.
Q: And whose trucks do you use from BASECO compound to the consignees warehouse?
A: We utilized of (sic) our own trucks and we have some other contracted trucks, Sir.
xxx
ATTY. JUBAY: Will you please explain to us, to the Honorable Court why is it you have to co
for the barges of Transport Ventures Incorporated in this particular operation?
A: Firstly, we dont own any barges. That is why we hired the services of another firm whom we
[al]ready for quite sometime, which is Transport Ventures, Inc. (Emphasis supplied) [43]
as a common carrier.

Atty. Jubay: Will you please tell us what [are you] functions x x x as Executive Vice-President and
The appellate court did not err in finding petitioner, a customs broker, to be also a common carrier, as de
General Manager of said Company?
under Article 1732 of the Civil Code, to wit,
Art. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying
would not leave a heavily loaded barge floating for a considerable number of hours, at such a precarious
or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services
and to
in the open sea, knowing that the barge does not have any power of its own and is totally defenseless
the public. the ravages of the sea. That it was nighttime and, therefore, the members of the crew of a tugboat wou
charging overtime pay did not excuse TVI from calling for one such tugboat.
xxx As for petitioner, for it to be relieved of liability, it should, following Article 1739 [53] of the Civil Code,
that it exercised due diligence to prevent or minimize the loss, before, during and after the occurrence
Article 1732 does not distinguish between one whose principal business activity is the carrying of goods andstorm
one in order that it may be exempted from liability for the loss of the goods.
who does such carrying only as an ancillary activity. The contention, therefore, of petitioner that it is not a
While petitioner sent checkers[54] and a supervisor[55] on board the vessel to counter-check the oper
common carrier but a customs broker whose principal function is to prepare the correct customs declaration and
of TVI, it failed to take all available and reasonable precautions to avoid the loss. After noting that TVI fai
proper shipping documents as required by law is bereft of merit. It suffices that petitioner undertakes to deliver
arrange for the prompt towage of the barge despite the deteriorating sea conditions, it should have summ
the goods for pecuniary consideration.[45]
the same or another tugboat to extend help, but it did not.
[56]
And in Calvo v. UCPB General Insurance Co. Inc.,[46] this Court held that as the transportation of goods isThis Court holds then that petitioner and TVI are solidarily liable for the loss of the cargoes
an integral part of a customs broker, the customs broker is also a common carrier. For to declare otherwise following pronouncement of the Supreme Court is instructive:
would be to deprive those with whom [it] contracts the protection which the law affords them notwithstanding the
fact that the obligation to carry goods for [its] customers, is part and parcel of petitioners business. [47] The foundation of LRTAs liability is the contract of carriage and its obligation to indemnify the victim arises
the breach of that contract by reason of its failure to exercise the high diligence required of the common c
As for petitioners argument that being the agent of Little Giant, any negligence it committed was deemed
In the discharge of its commitment to ensure the safety of passengers, a carrier may choose to hire its
the negligence of its principal, it does not persuade.
employees or avail itself of the services of an outsider or an independent firm to undertake the task. In
True, petitioner was the broker-agent of Little Giant in securing the release of the cargoes. In effectingcase,
thethe common carrier is not relieved of its responsibilities under the contract of carriage.
transportation of the cargoes from the shipside and into Little Giants warehouse, however, petitioner was
discharging its own personal obligation under a contact of carriage. Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of A
[48] 2176 and related provisions, in conjunction with Article 2180 of the Civil Code. x x x [O]ne might ask further
Petitioner, which did not have any barge or tugboat, engaged the services of TVI as handler to provide
[49] then must the liability of the common carrier, on one hand, and an independent contractor, on the other han
the barge and the tugboat. In their Service Contract, while Little Giant was named as the consignee, petitioner
described? It would be solidary. A contractual obligation can be breached by tort and when the same
did not disclose that it was acting on commission and was chartering the vessel for Little Giant. [50] Little Giant did
omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article 2194
not thus automatically become a party to the Service Contract and was not, therefore, bound by the terms and
Civil Code can well apply. In fine, a liability for tort may arise even under a contract, where tort is that
conditions therein.
breaches the contract. Stated differently, when an act which constitutes a breach of contract would have
Not being a party to the service contract, Little Giant cannot directly sue TVI based thereon but constituted
it can the source of a quasi-delictual liability had no contract existed between the parties, the contrac
maintain a cause of action for negligence.[51] be said to have been breached by tort, thereby allowing the rules on tort to apply.[57]

In the case of TVI, while it acted as a private carrier for which it was under no duty to observe As for Black Sea, its duty as a common carrier extended only from the time the goods were surrende
extraordinary diligence, it was still required to observe ordinary diligence to ensure the proper and careful
unconditionally placed in its possession and received for transportation until they were delivered actua
handling, care and discharge of the carried goods. constructively to consignee Little Giant.[58]
Thus, Articles 1170 and 1173 of the Civil Code provide:
Parties to a contract of carriage may, however, agree upon a definition of delivery that extend
services rendered by the carrier. In the case at bar, Bill of Lading No. 2 covering the shipment provide
those be made to the port of discharge or so near thereto as she may safely get, always afloat.[59] The de
ART. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and delivery
who in any manner contravene the tenor thereof, are liable for damages. of the goods to the consignee was not from pier to pier but from the shipside of M/V Alexander Saveliev an
barges, for which reason the consignee contracted the services of petitioner. Since Black Sea had construc
delivered the cargoes to Little Giant, through petitioner, it had discharged its duty.[60]
ART. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by
the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. In fine, no liability may thus attach to Black Sea.
When negligence shows bad faith, the provisions of articles 1171 and 2202, paragraph 2, shall apply.
Respecting the award of attorneys fees in an amount over P1,000,000.00 to Industrial Insurance, fo
of factual and legal basis, this Court sets it aside. While Industrial Insurance was compelled to litigate its r
If the law or contract does not state the diligence which is to be observed in the performance, that which is
such fact by itself does not justify the award of attorneys fees under Article 2208 of the Civil Code. F
expected of a good father of a family shall be required. sufficient showing of bad faith would be reflected in a partys persistence in a case other than an erron
conviction of the righteousness of his cause.[61] To award attorneys fees to a party just because the judgm
Was the reasonable care and caution which an ordinarily prudent person would have used in the rendered
same in its favor would be tantamount to imposing a premium on ones right to litigate or seek judicial re
situation exercised by TVI?[52] of legitimate grievances.[62]

This Court holds not. On the award of adjustment fees: The adjustment fees and expense of divers were incurred by Ind
Insurance in its voluntary but unsuccessful efforts to locate and retrieve the lost cargo. They do not con
TVIs failure to promptly provide a tugboat did not only increase the risk that might have been reasonably
actual damages.[63]
anticipated during the shipside operation, but was the proximate cause of the loss. A man of ordinary prudence
 As for the court a quos award of interest on the amount claimed, the same calls for modification following
the ruling in Eastern Shipping Lines, Inc. v. Court of Appeals[64] that when the demand cannot be reasonably
established at the time the demand is made, the interest shall begin to run not from the time the claim is made
judicially or extrajudicially but from the date the judgment of the court is made (at which the time the
quantification of damages may be deemed to have been reasonably ascertained). [65]

WHEREFORE, judgment is hereby rendered ordering petitioner Schmitz Transport & Brokerage
Corporation, and Transport Venture Incorporation jointly and severally liable for the amount of P5,246,113.11
with the MODIFICATION that interest at SIX PERCENT per annum of the amount due should be computed from
the promulgation on November 24, 1997 of the decision of the trial court.

Costs against petitioner.

SO ORDERED.
 THIRD DIVISION
[G.R. No. 138123. March 12, 2002]
MINDEX RESOURCES DEVELOPMENT, petitioner, vs. EPHRAIM MORILLO, respondent.
DECISION
PANGANIBAN, J.:
Attorneys fees cannot be granted simply because one was compelled to sue to protect and enforce
ones right. The grant must be proven by facts; it cannot depend on mere speculation or conjecture -- its
basis must be stated in the text of the decision.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the March 26,
1999 Decision[1] of the Court of Appeals (CA) in CA-GR CV No. 46967. The dispositive portion of the
challenged Decision reads as follows:
WHEREFORE, the appealed decision is AFFIRMED with MODIFICATION that the legal interest to be
paid on the rentals of P76,000.00 and costs of repair in the amount of P132,750.00 is six (6%) percent per
annum from June 22, 1994, the date of the decision of the court a quo to the date of its finality. Thereafter,
if the amounts adjudged remain unpaid, the interest rate shall be twelve (12%) percent per annum from the
date of finality of the decision until fully paid.[2]
The Facts
The factual antecedents of the case are summarized by the CA in this wise:
On February 1991, a verbal agreement was entered into between Ephraim Morillo and Mindex Resources
Corporation (MINDEX for brevity) for the lease of the formers 6 x 6 ten-wheeler cargo truck for use in
MINDEXs mining operations in Binaybay, Bigaan, San Teodoro, Oriental Mindoro, at the stipulated
rental of P300.00 per hour for a minimum of eight hours a day or a total of P2,400.00 daily. MINDEX had
been paying the rentals until April 10, 1991.
Unknown to Morillo, on April 11, 1991, the truck was burned by unidentified persons while it was parked
unattended at Sitio Aras, Bigaan, San Teodoro, Oriental Mindoro, due to mechanical trouble. The findings
of the Mindoro Oriental Integrated National Police in their investigation report read:
3. On 121005H April 1991, Mr Alexander Roxas, project coordinator of MINDEX MINING CORP.
reported to this office that on the morning of 12 April 1991 while he was supposed to report for his Work
at their office at Sitio Tibonbon, Bigaan, San Teodoro, Oriental Mindoro, he x x x noticed that their hired
6 x 6 Ten wheeler Cargo Truck temporarily parked at Sitio Aras, Bigaan, San Teodoro, Oriental Mindoro
for aplha Engine Trouble was burned on the night of April 11, 1991 by still unidentified person.
xxxxxxxxx
5. x x x Based also on the facts gathered and incident scene searched it was also found out that said 6 x 6
Ten Wheeler Cargo Truck was burned by means of using coconut leaves and as a result of which said 6 x
6 was totally burned excluding the engine which was partially damaged by still undetermined amount.
Upon learning of the burning incident, Morillo offered to sell the truck to MINDEX but the latter refused.
Instead, it replaced the vehicles burned tires and had it towed to a shop for repair and overhauling.
On April 15, 1991, Morillo sent a letter to Mr. Arni Isberg, the Finance Manager of MINDEX, thru Mr.
Ramoncito Gozar, Project Manager, proposing the following:
xxxxxxxxx
I have written to let you know that I am entrusting to you the said vehicle in the amount of P275,000.00
which is its cost price. I will not charge your company for the encumbrance of P76,800+ since you used it
as my friendly gesture on account of the unforeseen adversity.
In view of the tragic happening, I am asking you to pay us, in a way which will not be hard for you to
settle to pay us in four installment monthly as follows:
First payment - April 25/91 P[1]50,000.00
Second payment - May 15/91 50,000.00
Third payme(n)t - June 15/91 50,000.00
Fourth payme(n)t - July 15/91 25,000.00
TOTAL P275,000.00
I promise to relinquish all the necessary documents upon full payment of said account.
xxxxxxxxx
Through Mr. Gozar, MINDEX responded by a handwritten letter to his cousin Malou (wife of Ephraim
Morillo), expressing their reservations on the above demands due to their tight financial situation.
However, he made the following counter offers:
a) Pay the rental of the 6 x 6 truck (actual) in the amount of P76,000.00.
b) Repair and overhaul the truck on our own expenses and;
c) Return it to you on (A1) good running condition after repair.
Morillo replied on April 18, 1991, (1) that he will relinquish to MINDEX the damaged truck; (2) that he is
amenable to receive the rental in the amount of P76,000.00; and (3) that MINDEX will pay fifty thousand
pesos (P50,000.00) monthly until the balance of P275,000.00 is fully paid. It is noteworthy that except for
his acceptance of the proffered P76,000.00 unpaid rentals, Morillos stand has virtually not been changed
as he merely lowered the first payment on the P275,000.00 valuation of the truck from P150,000.00
to P50,000.00.
The parties had since remained intransigent and so on August 1991, Morillo pulled out the truck from the
repair shop of MINDEX and had it repaired elsewhere for which he spent the total amount
of P132,750.00.[3] (Citations omitted)
Ruling of the Trial Court
After evaluating the evidence adduced by both parties, the Regional Trial Court (RTC) found
petitioner responsible for the destruction or loss of the leased 6 x 6 truck and ordered it to pay respondent
(1) P76,000 as balance of the unpaid rental for the 6 x 6 truck with interest of 12 percent from June 22,
1994 (the rendition of the judgment) up to the payment of the amount; (2) P132,750 representing the costs
of repair and overhaul of the said truck, with interest rate of 12 percent until fully paid; and (3) P20,000 as
attorneys fees for compelling respondent to secure the services of counsel in filing his Complaint.
Ruling of the Court of Appeals
The appellate court sustained the RTCs finding that petitioner was not without fault for the loss and
destruction of the truck and, thus, liable therefor. The CA said:
The burning of the subject truck was impossible to foresee, but not impossible to avoid. MINDEX could
have prevented the incident by immediately towing the truck to a motor shop for the needed repair or by
having it guarded day and night. Instead, the appellant just left the vehicle where its transfer case broke
down. The place was about twelve (12) kilometers away from the camp site of the appellant corporation
and was sparsely populated. It was guarded only during daytime. It stayed in that place for two (2) weeks
until it was burned on April 11, 1991 while its transfer case was being repaired elsewhere. It was only
after it had been burned that the appellant had it towed to a repair shop.
The appellant [respondent] was thus not free from fault for the burning of the truck. It miserably failed to
overcome the presumption of negligence against it. Neither did it rescind the lease over the truck upon its
burning. On the contrary, it offered to pay P76,000.00 as rentals. It did not also complete the needed
repair. Hence, the appellee was forced to pull out the truck and had it repaired at his own expense. Since
under the law, the lessee shall return the thing leased, upon the termination of the lease, just as he receive
it, the appellant stands liable for the expenses incurred for the repair in the aggregate amount
of P132,750.00.[4]
Nevertheless, the appellate court modified the Decision of the trial court. The 12 percent interest
rate on the P76,000 rentals and the P132,750 repair costs, imposed by the RTC, was changed by the CA to
6 percent per annum from June 22, 1994 to the date of finality of the said Decision; and 12 percent per
annum thereafter, if the amounts adjudged would remain unpaid from such date of finality until the rentals
and the repair costs were fully paid. It affirmed the award of attorneys fees.
Hence, this Petition.[5]
Issues
In its Memorandum, petitioner raises the following issues for the Courts consideration:
4.1. Whether or not the Court of Appeals gravely erred in finding that petitioner failed to overcome the
presumption of negligence against it considering that the facts show, as admitted by the respondent, that
the burning of the truck was a fortuitous event.
4.2. Whether or not the Court of Appeals gravely erred in affirming the decision of the trial court finding
petitioner liable to pay unpaid rentals and cost of repairs.
4.3. Whether or not the Court of Appeals also erred in affirming the decision of the trial court finding
petitioner liable to pay attorneys fees.[6]
This Courts Ruling
The Petition is partly meritorious; the award of attorneys fees should be deleted.
First Issue:
Petitioners Negligence
Petitioner claims that the burning of the truck was a fortuitous event, for which it should not be held
liable pursuant to Article 1174[7] of the Civil Code. Moreover, the letter of respondent dated April 15,
1991, stating that the burning of the truck was an unforeseen adversity, was an admission that should
exculpate the former from liability.
We are not convinced. Both the RTC and the CA found petitioner negligent and thus liable for the
loss or destruction of the leased truck. True, both parties may have suffered from the burning of the truck;
however, as found by both lower courts, the negligence of petitioner makes it responsible for the loss.
Well-settled is the rule that factual findings of the trial court, particularly when affirmed by the Court of
Appeals, are binding on the Supreme Court. Contrary to its allegations, petitioner has not adequately
shown that the RTC and the CA overlooked or disregarded significant facts and circumstances that, when
considered, would alter the outcome of the disposition. [8] Article 1667 of the Civil Code[9] holds lessees
responsible for the deterioration or loss of the thing leased, unless they prove that it took place without
their fault.
Fortuitous Event
In order for a fortuitous event to exempt one from liability, it is necessary that one has committed
no negligence or misconduct that may have occasioned the loss. [10] An act of God cannot be invoked to
protect a person who has failed to take steps to forestall the possible adverse consequences of such a loss.
Ones negligence may have concurred with an act of God in producing damage and injury to another;
nonetheless, showing that the immediate or proximate cause of the damage or injury was a fortuitous
event would not exempt one from liability. When the effect is found to be partly the result of a persons
participation -- whether by active intervention, neglect or failure to act -- the whole occurrence is
humanized and removed from the rules applicable to acts of God. [11]
This often-invoked doctrine of fortuitous event or caso fortuito has become a convenient and easy
defense to exculpate an obligor from liability. To constitute a fortuitous event, the following elements
must concur: (a) the cause of the unforeseen and unexpected occurrence or of the failure of the debtor to
comply with obligations must be independent of human will; (b) it must be impossible to foresee the event
that constitutes the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c) the occurrence
must be such as to render it impossible for the debtor to fulfill obligations in a normal manner; and (d) the
obligor must be free from any participation in the aggravation of the injury or loss.[12]
Article 1174 of the Civil Code states that no person shall be responsible for a fortuitous event that
could not be foreseen or, though foreseen, was inevitable. In other words, there must be an exclusion of
human intervention from the cause of injury or loss.[13]
A review of the records clearly shows that petitioner failed to exercise reasonable care and caution
that an ordinarily prudent person would have used in the same situation. Witness Alexander Roxas
testified how petitioner fell short of ordinary diligence in safeguarding the leased truck against the
accident, which could have been avoided in the first place. Pertinent portions of his testimony are
reproduced hereunder:
ATTY. ACERON
Q Now, this Barangay Aras where the 6 x 6 truck had transmission trouble, how far is it from the
camp site of the defendant corporation?
ALEXANDER ROXAS
A Twelve (12) kilometers, more or less, sir.
Q Is this Barangay Aras populated?
A Not so many, sir.
Q The place where the 6 x 6 truck had transmission trouble, how far is the nearest house from it?
A Perhaps three hundred meters, sir.
Q And how many houses are within the three hundred meter radius from the place where the truck
had engine trouble?
A Ten, more or less, in scattered.
Q You said that after hauling several sand to be used in the camp site the 6 x 6 truck had transmission
trouble, what did the company do after the truck had that engine trouble?
A For at least two weeks the truck was installed in the place where the said truck had engine trouble.
Q Meaning in Barangay Aras?
A Yes, sir.
Q Was there any guard in that place by the company during the time that the truck was in that place?
A Yes, sir, during daytime but at nighttime, there was no guard.
Q What happened to that 6 x 6 truck?
A In the month of March, 1991, the company dismissed thirteen (13) to seventeen (17) employees and
these employees came from Barangays Aras, Botolan, Calsapa, Camatis and Tibonbon and on
Aril 11, 1991, the 6 x 6 truck was burned.
Q How did you come to know that the 6 x 6 truck was burned on April 11, 1991?
A I together with my daughter, I met the service of the company near the ORMECO and I was
informed by the Project Engineer that the 6 x 6 truck was burned, so, we returned to San
Teodoro and have the incident blottered at the police station.
Q Aside from that, what other action did you undertake in connection with the burning of the 6 x 6
truck?
A When we were at the police station, the Project Manager of the company arrived and from the
police station we proceeded to the place where the 6 x 6 truck was burned and the Project
Manager took pictures of the 6 x 6 truck.
Q Now, did you come to know who was responsible or who were responsible for the burning of the 6
x 6 truck?
A The responsible is the Mindex Resources Development Corporation, and as far as I know, the
persons who actually burned the said 6 x 6 truck were the dismissed employees of the Mindex
Resources Development Corporation.
Q These dismissed employees of the corporation, why were they employed by the corporation?
A Because we have to make a road going to the mining site and in the process of opening the road
these dismissed employees happened to be the owners of the land where the road will pass, so,
we paid the land. The corporation likewise gave jobs to the owners of the land. [14]
As can be gleaned from the foregoing testimony, petitioner failed to employ reasonable foresight,
diligence and care that would have exempted it from liability resulting from the burning of the truck.
Negligence, as commonly understood, is that conduct that naturally or reasonably creates undue risk or
harm to others. It may be a failure to observe that degree of care, precaution or vigilance that the
circumstances justly demand;[15] or to do any other act that would be done by a prudent and reasonable
person, who is guided by considerations that ordinarily regulate the conduct of human affairs. [16]
Second Issue:
Unpaid Rentals and Cost of Repairs
Petitioner proceeds to argue that it should be deemed to have already paid the unpaid rentals in the
amount of P76,000.00, and that it should not be made to pay the P132,750 repair and overhaul costs.
Nothing in the records, not even in the documentary evidence it presented, would show that it already paid
the aforesaid amounts. In fact, it seeks to avoid payment of the rental by alleging that respondent already
condoned it in his letter dated April 15, 1991. However, a perusal of the letter would show that his offer
not to charge petitioner for the P76,000 rental was premised on the condition that it would buy the
truck.[17]
Moreover, the RTC based the P76,000 rental and the costs of repair and overhaul on Exhibit B,
wherein Chito Gozar, the Project Manager of Mindex Resources Development Corporation, proposed
through a letter dated April 17, 1991, the following: (1) to pay the P76,000 rental, (2) to repair the truck at
the expense of petitioner, and (3) to return the truck in good running condition after the repair.
Likewise, the nonpayment of the said amount was corroborated by Roxas thus:
Q During that time when the 6 x 6 truck was already burned and when you went to the Petron
Gasoline Station to inform plaintiff about the burning, was the plaintiff paid any amount for the
rental of the 6 x 6 truck?
A :Before the burning of the 6 x 6 truck, the plaintiff Morillo was already paid partially and there was
a balance of P76,000.00.[18]
The P132,750 repair and overhaul costs was correctly granted by the lower courts. Article 1667 of
the Civil Code holds the lessee responsible for the deterioration or loss of the thing leased. In addition,
Article 1665 of the same Code provides that the lessee shall return the thing leased, upon the termination
of the lease, just as he received it, save what has been lost or impaired by the lapse of time, or by ordinary
wear and tear, or from an inevitable cause.
 Courts begin with the assumption that compensatory damages are for pecuniary losses that result
from an act or omission of the defendant. Having been found to be negligent in safeguarding the leased
truck, petitioner must shoulder its repair and overhaul costs to make it serviceable again. Such expenses
are duly supported by receipts; thus, the award of P132,750 is definitely in order.

Third Issue:
Attorneys Fees

We find the award of attorneys fees to be improper. The reason which the RTC gave -- because
petitioner had compelled respondent to file an action against it -- falls short of our requirement in Scott
Consultants and Resource Development v. CA,[19] from which we quote:

It is settled that the award of attorneys fees is the exception rather than the rule and counsels fees are not
to be awarded every time a party wins suit. The power of the court to award attorneys fees under Article
2208 of the Civil Code demands factual, legal, and equitable justification; its basis cannot be left to
speculation or conjecture. Where granted, the court must explicitly state in the body of the decision, and
not only in the dispositive portion thereof, the legal reason for the award of attorneys fees.

Moreover, a recent case[20] ruled that in the absence of stipulation, a winning party may be awarded
attorneys fees only in case plaintiffs action or defendants stand is so untenable as to amount to gross and
evident bad faith.

Indeed, respondent was compelled to file this suit to vindicate his rights. However, such fact by
itself will not justify an award of attorneys fees, when there is no sufficient showing of petitioners bad
faith in refusing to pay the said rentals as well as the repair and overhaul costs. [21]

WHEREFORE, the Petition is DENIED, but the assailed CA Decision

is MODIFIED by DELETING the award of attorneys fees. Costs against petitioner.

SO ORDERED.