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AMADO PICART vs. FRANK SMITH, JR., he did this was that he thought he did not have
G.R. No. L-12219 March 15, 1918 sufficient time to get over to the other side. The
bridge is shown to have a length of about 75
Republic of the Philippines meters and a width of 4.80 meters. As the
SUPREME COURT automobile approached, the defendant guided it
Manila toward his left, that being the proper side of the
road for the machine. In so doing the defendant
EN BANC assumed that the horseman would move to the
other side. The pony had not as yet exhibited fright,
G.R. No. L-12219            March 15, 1918 and the rider had made no sign for the automobile
to stop. Seeing that the pony was apparently quiet,
AMADO PICART, plaintiff-appellant,  the defendant, instead of veering to the right while
vs. yet some distance away or slowing down,
FRANK SMITH, JR., defendant-appellee. continued to approach directly toward the horse
without diminution of speed. When he had gotten
quite near, there being then no possibility of the
Alejo Mabanag for appellant.
horse getting across to the other side, the
G. E. Campbell for appellee.
defendant quickly turned his car sufficiently to the
right to escape hitting the horse alongside of the
STREET, J.: railing where it as then standing; but in so doing the
automobile passed in such close proximity to the
In this action the plaintiff, Amado Picart, seeks to animal that it became frightened and turned its
recover of the defendant, Frank Smith, jr., the sum body across the bridge with its head toward the
of P31,000, as damages alleged to have been railing. In so doing, it as struck on the hock of the
caused by an automobile driven by the defendant. left hind leg by the flange of the car and the limb
From a judgment of the Court of First Instance of was broken. The horse fell and its rider was
the Province of La Union absolving the defendant thrown off with some violence. From the
from liability the plaintiff has appealed.  evidence adduced in the case we believe that
when the accident occurred the free space
The occurrence which gave rise to the institution of where the pony stood between the automobile
this action took place on December 12, 1912, on and the railing of the bridge was probably less
the Carlatan Bridge, at San Fernando, La Union. It than one and one half meters. As a result of its
appears that upon the occasion in question the injuries the horse died. The plaintiff received
plaintiff was riding on his pony over said contusions which caused temporary
bridge. Before he had gotten half way across, the unconsciousness and required medical
defendant approached from the opposite direction attention for several days. 
in an automobile, going at the rate of about ten or
twelve miles per hour. As the defendant neared the The question presented for decision is whether or
bridge he saw a horseman on it and blew his horn not the defendant in maneuvering his car in the
to give warning of his approach. He continued his manner above described was guilty of negligence
course and after he had taken the bridge he gave such as gives rise to a civil obligation to repair the
two more successive blasts, as it appeared to him damage done; and we are of the opinion that he is
that the man on horseback before him was not so liable. As the defendant started across the
observing the rule of the road.  bridge, he had the right to assume that the horse
and the rider would pass over to the proper side;
The plaintiff, it appears, saw the automobile coming but as he moved toward the center of the bridge it
and heard the warning signals. However, being was demonstrated to his eyes that this would
perturbed by the novelty of the apparition or the not be done; and he must in a moment have
rapidity of the approach, he pulled the pony closely perceived that it was too late for the horse to
up against the railing on the right side of the bridge cross with safety in front of the moving vehicle.
instead of going to the left. He says that the reason In the nature of things this change of situation

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occurred while the automobile was yet some consideration, foresee harm as a result of the
distance away; and from this moment it was not course actually pursued? If so, it was the duty of
longer within the power of the plaintiff to escape the actor to take precautions to guard against that
being run down by going to a place of greater harm. Reasonable foresight of harm, followed by
safety. The control of the situation had then passed ignoring of the suggestion born of this prevision, is
entirely to the defendant; and it was his duty either always necessary before negligence can be held to
to bring his car to an immediate stop or, seeing that exist. Stated in these terms, the proper criterion for
there were no other persons on the bridge, to take determining the existence of negligence in a given
the other side and pass sufficiently far away from case is this: Conduct is said to be negligent
the horse to avoid the danger of collision. Instead of when a prudent man in the position of the
doing this, the defendant ran straight on until he tortfeasor would have foreseen that an effect
was almost upon the horse. He was, we think, harmful to another was sufficiently probable to
deceived into doing this by the fact that the horse warrant his foregoing conduct or guarding
had not yet exhibited fright. But in view of the against its consequences. 
known nature of horses, there was an appreciable
risk that, if the animal in question was unacquainted Applying this test to the conduct of the defendant in
with automobiles, he might get exited and jump the present case we think that negligence is clearly
under the conditions which here confronted him. established. A prudent man, placed in the position
When the defendant exposed the horse and rider to of the defendant, would in our opinion, have
this danger he was, in our opinion, negligent in the recognized that the course which he was pursuing
eye of the law.  was fraught with risk, and would therefore have
foreseen harm to the horse and the rider as
The test by which to determine the existence of reasonable consequence of that course. Under
negligence in a particular case may be stated as these circumstances the law imposed on the
follows: Did the defendant in doing the alleged defendant the duty to guard against the threatened
negligent act use that person would have used in harm.
the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the It goes without saying that the plaintiff himself was
standard supposed to be supplied by the imaginary not free from fault, for he was guilty of antecedent
conduct of the discreet paterfamilias of the Roman negligence in planting himself on the wrong side of
law. The existence of negligence in a given case is the road. But as we have already stated, the
not determined by reference to the personal defendant was also negligent; and in such case the
judgment of the actor in the situation before him. problem always is to discover which agent is
The law considers what would be reckless, immediately and directly responsible. It will be
blameworthy, or negligent in the man of ordinary noted that the negligent acts of the two parties were
intelligence and prudence and determines liability not contemporaneous, since the negligence of the
by that.  defendant succeeded the negligence of the plaintiff
by an appreciable interval. Under these
The question as to what would constitute the circumstances the law is that the person who has
conduct of a prudent man in a given situation must the last fair chance to avoid the impending harm
of course be always determined in the light of and fails to do so is chargeable with the
human experience and in view of the facts involved consequences, without reference to the prior
in the particular case. Abstract speculations cannot negligence of the other party. 
here be of much value but this much can be
profitably said: Reasonable men govern their The decision in the case of Rkes vs. Atlantic, Gulf
conduct by the circumstances which are before and Pacific Co. (7 Phil. Rep., 359) should perhaps
them or known to them. They are not, and are not be mentioned in this connection. This Court there
supposed to be, omniscient of the future. Hence held that while contributory negligence on the part
they can be expected to take care only when there of the person injured did not constitute a bar to
is something before them to suggest or warn of recovery, it could be received in evidence to reduce
danger. Could a prudent man, in the case under the damages which would otherwise have been
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assessed wholly against the other party. The investigation the defendant was discharged by the
defendant company had there employed the magistrate and the proceedings were dismissed.
plaintiff, as a laborer, to assist in transporting iron Conceding that the acquittal of the defendant at the
rails from a barge in Manila harbor to the trial upon the merits in a criminal prosecution for
company's yards located not far away. The rails the offense mentioned would be res adjudicata
were conveyed upon cars which were hauled along upon the question of his civil liability arising from
a narrow track. At certain spot near the water's negligence -- a point upon which it is unnecessary
edge the track gave way by reason of the combined to express an opinion -- the action of the justice of
effect of the weight of the car and the insecurity of the peace in dismissing the criminal proceeding
the road bed. The car was in consequence upset; upon the preliminary hearing can have no effect.
the rails slid off; and the plaintiff's leg was caught (See U. S. vs. Banzuela and Banzuela, 31 Phil.
and broken. It appeared in evidence that the Rep., 564.) 
accident was due to the effects of the typhoon
which had dislodged one of the supports of the From what has been said it results that the
track. The court found that the defendant company judgment of the lower court must be reversed, and
was negligent in having failed to repair the bed of judgment is her rendered that the plaintiff recover of
the track and also that the plaintiff was, at the the defendant the sum of two hundred pesos
moment of the accident, guilty of contributory (P200), with costs of other instances. The sum here
negligence in walking at the side of the car instead awarded is estimated to include the value of the
of being in front or behind. It was held that while the horse, medical expenses of the plaintiff, the loss or
defendant was liable to the plaintiff by reason of its damage occasioned to articles of his apparel, and
negligence in having failed to keep the track in lawful interest on the whole to the date of this
proper repair nevertheless the amount of the recovery. The other damages claimed by the
damages should be reduced on account of the plaintiff are remote or otherwise of such character
contributory negligence in the plaintiff. As will be as not to be recoverable. So ordered. 
seen the defendant's negligence in that case
consisted in an omission only. The liability of the Separate Opinions
company arose from its responsibility for the
dangerous condition of its track. In a case like the MALCOLM, J., concurring: 
one now before us, where the defendant was
actually present and operating the automobile After mature deliberation, I have finally decided to
which caused the damage, we do not feel concur with the judgment in this case. I do so
constrained to attempt to weigh the negligence of because of my understanding of the "last clear
the respective parties in order to apportion the chance" rule of the law of negligence as particularly
damage according to the degree of their relative applied to automobile accidents. This rule cannot
fault. It is enough to say that the negligence of be invoked where the negligence of the plaintiff is
the defendant was in this case the immediate concurrent with that of the defendant. Again, if a
and determining cause of the accident and that traveler when he reaches the point of collision is in
the antecedent negligence of the plaintiff was a a situation to extricate himself and avoid injury, his
more remote factor in the case.  negligence at that point will prevent a recovery. But
Justice Street finds as a fact that the negligent act
A point of minor importance in the case is indicated of the interval of time, and that at the moment the
in the special defense pleaded in the defendant's plaintiff had no opportunity to avoid the accident.
answer, to the effect that the subject matter of the Consequently, the "last clear chance" rule is
action had been previously adjudicated in the court applicable. In other words, when a traveler has
of a justice of the peace. In this connection it reached a point where he cannot extricate himself
appears that soon after the accident in question and vigilance on his part will not avert the injury, his
occurred, the plaintiff caused criminal proceedings negligence in reaching that position becomes the
to be instituted before a justice of the peace condition and not the proximate cause of the injury
charging the defendant with the infliction of serious and will not preclude a recovery. (Note especially
injuries (lesiones graves). At the preliminary Aiken vs. Metcalf [1917], 102 Atl., 330.)
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[ GR Nos. 79050-51, Nov 14, 1989 ] should, with exercise of due care, have been aware
of it. One cannot be expected to avoid an accident
or injury if he does not know or could not have
PANTRANCO NORTH EXPRESS v. MARICAR known the existence of the peril. In this case, there
BASCOS BAESA + is nothing to show that the jeepney driver David Ico
knew of the impending danger. When he saw at a
distance that the approaching bus was encroaching
on his lane, he did not immediately swerve the
jeepney to the dirt shoulder on his right since he
must have assumed that the bus driver will return
SYLLABUS: the bus to its own lane upon seeing the jeepney
approaching from the opposite direction.
Torts and Damages; Last Clear Chance; The
doctrine applies only in a situation where the
plaintiff was guilty of prior or antecedent negligence
but the defendant, who had the last clear chance to Same; Same; Doctrine not applicable where the
avoid the injury and failed to do so is made liable party charged is required to act instantaneously.—
for all the consequences of the accident.—The The speed at which the approaching bus was
doctrine applies only in a situation where the running prevented David Ico from swerving the
plaintiff was guilty of prior or antecedent negligence jeepney to the right shoulder of the road in time to
but the defendant, who had the last fair chance to avoid the collision. Thus, even assuming that the
avoid the impending harm and failed to do so, is jeepney driver perceived the danger a few seconds
made liable for all the consequences of the before the actual collision, he had no opportunity to
accident notwithstanding the prior negligence of the avoid it. This Court has held that the last clear
plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan chance doctrine “can never apply where the party
People’s Lumber and Hardware, et al. v. charged is required to act instantaneously, and if
Intermediate Appellate Court, Cecilia Alferez Vda. the injury cannot be avoided by the application of
de Calibo, et al., G.R. No. 70493, May 18, 1989]. all means at hand after the peril is or should have
The subsequent negligence of the defendant in been discovered” [Ong v. Metropolitan Water
failing to exercise ordinary care to avoid injury to District, supra].
plaintiff becomes the immediate or proximate cause
of the accident which intervenes between the
accident and the more remote negligence of the Same; Same; Proximate Cause; Negligence of
plaintiff, thus making the defendant liable to the petitioner’s driver was the proximate cause of the
plaintiff [Picart v. Smith, supra]. Generally, the last injury without which the accident would not have
clear chance doctrine is invoked for the purpose of occurred.—Considering the foregoing, the Court
making a defendant liable to a plaintiff who was finds that the negligence of petitioner’s driver in
guilty of prior or antecedent negligence, although it encroaching into the lane of the incoming jeepney
may also be raised as a defense to defeat claim for and in failing to return the bus to its own lane
damages. immediately upon seeing the jeepney coming from
the opposite direction was the sole and proximate
cause of the accident without which the collision
Same; Same; The doctrine does not apply where would not have occurred. There was no
the person who allegedly had the last opportunity to supervening or intervening negligence on the part
avoid the accident was not aware of the existence of the jeepney driver which would have made the
of the peril.—Contrary to the petitioner’s contention, prior negligence of petitioner’s driver a mere remote
the doctrine of “last clear chance” finds no cause of the accident.
application in this case. For the doctrine to be
applicable, it is necessary to show that the person
who allegedly had the last opportunity to avert the Same; Quasi-Delict; After negligence of an
accident was aware of the existence of the peril or employee has been established, burden of proof is
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on the employer to show that he exercised due Civil Case No. 561-R and Civil Case No. 589-R
diligence in the selection and supervision of his wherein PANTRANCO was ordered to pay
employees.—The finding of negligence on the part damages and attorney's fees to herein private
of its driver Ambrosio Ramirez gave rise to the respondents.
presumption of negligence on the part of petitioner
and the burden of proving that it exercised due The pertinent facts are as follows:
diligence not only in the selection of its employees
At about 7:00 o'clock in the morning of June 12,
but also in adequately supervising their work rests
1981, the spouses Ceasar and
with the petitioner [Lilius v. Manila Railroad
Marilyn Baesa and their children Harold
Company, 59 Phil. 758 (1934), Umali v. Bacani,
Jim, Marcelino and Maricar, together with
G.R. No. L-40570, June 30, 1976, 69 SCRA 623].
spouses David Ico and Fe O. Ico with their son
Contrary to petitioner’s claim, there is no
Erwin Ico and seven other persons, were
presumption that the usual recruitment procedures
aboard a passenger jeepney on their way to a
and safety standards were observed. The mere
picnic at Malalam River, Ilagan, Isabela, to
issuance of rules and regulations and the
celebrate the fifth wedding anniversary
formulation of various company policies on safety,
of Ceasar and Marilyn Baesa.
without showing that they are being complied with,
are not sufficient to exempt petitioner from liability The group, numbering fifteen (15) persons, rode in
arising from the negligence of its employee. It is the passenger jeepney driven by David Ico, who
incumbent upon petitioner to show that in recruiting was also the registered owner
and employing the erring driver, the recruitment thereof.  From Ilagan, Isabela, they proceeded to
procedures and company policies on efficiency and Barrio Capayacan to deliver some viands to one
safety were followed. Mrs. Bascos and thenceforth to San Felipe, taking
the highway going to Malalam River.  Upon
reaching the highway, the jeepney turned right
Same; Absence of documentary evidence does not and proceeded to Malalam River at a speed of
bar recovery of damages for loss of earning about 20 kph.  While they were proceeding
capacity.—The Court finds that the Court of towards Malalam River, a speeding
Appeals committed no reversible error in fixing the PANTRANCO bus from Aparri, on its regular
amount of damages for the loss of earning capacity route to Manila, encroached on
of the deceased victims. While it is true that private the jeepney's lane while negotiating a curve,
respondents should have presented documentary and collided wit it.
evidence to support their claim for damages for loss
As a result of the accident David Ico,
of earning capacity of the deceased victims, the
spouses Ceasar Baesa and Marilyn Baesa and
absence thereof does not necessarily bar the
their children, Harold Jim and Marcelino Baesa,
recovery of the damages in question. The
died while the rest of the passengers suffered
testimony of Fe Ico and Francisca Bascos as to the
injuries.  The jeepney was extensively
earning capacity of David Ico and the spouses
damaged.  After the accident the driver of the
Baesa, respectively, are sufficient to establish a
PANTRANCO Bus, Ambrosio Ramirez, boarded a
basis from which the court can make a fair and
car and proceeded to Santiago, Isabela.  From that
reasonable estimate of the damages for the loss of
time on up to the present, Ramirez has never been
earning capacity of the three deceased victims.
seen and has apparently remained in hiding.
All the victims and/or their surviving heirs except
CORTES, J.: herein private respondents settled the case
amicably under the "No Fault" insurance coverage
In this Petition, Pantranco North Express Inc. of PANTRANCO.
(PANTRANCO) asks the Court to review the
decision of the Court of Appeals in CA-G.R. CV No. Maricar Baesa through her guardian Francisca
05494-95 which affirmed the decisions of the then O. Bascos and Fe O. Ico for herself and for her
Court of First Instance of Rosales, Pangasinan in minor children, filed separate actions for
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WEEK 3 - TORTS

damages arising from quasi-delict against D)    For the loss of earnings of Ceasar Baesa -

PANTRANCO, respectively docketed as Civil Case P630,000.00;
No. 561-R and 589-R of the Court of First Instance
of Pangasinan. E)     For the loss of earnings of
Marilyn Bascos Baesa - P375,000.00;
In its answer, PANTRANCO, aside from pointing
to the late David Ico's alleged negligence as the F)     For the burial expenses of the
proximate cause of the accident, invoked the deceased Ceasar and Marilyn Baesa - P 41,200.00
defense of due diligence in the selection and
G)    For hospitalization expenses
supervision of its driver, Ambrosio Ramirez.
of Maricar Baesa - P3,727.00
On July 3, 1984, the CFI of Pangasinan rendered a
H)     As moral damages - P50,000.00;
decision against PANTRANCO awarding the total
amount of Two Million Three Hundred Four I)        As attorney's fees - P20,000.00.
Thousand Six Hundred Forty-Seven Pesos
(P2,304,647.00) as damages, plus 10% thereof as II.  The plaintiffs in Civil Case No. 589-R, the
attorney's fees and costs to Maricar Baesa in Civil following damages:
Case No. 561-R, and the total amount of Six A)     As compensatory damages for the death of
Hundred Fifty Two Thousand Six Hundred Seventy- David Ico - P30,000.00;
Two Pesos (P652,672.00) as damages, plus 10% B)     For loss of earning capacity of David Ico -
thereof as attorney's fees and costs to Fe Ico and P252,000.00
her children in Civil Case No. 589-R.  On appeal, C)    As moral damages for the death of
the cases were consolidated and the Court of David Ico and the injury of Fe Ico - P30,000.00;
Appeals modified the decision of the trial court by D)    As payment for the jeepney - P20,000.00;
ordering PANTRANCO to pay the total amount of E)     For the hospitalization of Fe Ico - P12,000.00;
One Million One Hundred Eighty-Nine Thousand F)     And for attorney's fees - P10,000.00;
Nine Hundred Twenty-Seven Pesos and to pay the costs in both cases.
(P1,189,927.00) as damages, plus Twenty The amount of P25,000.00 paid
Thousand Pesos (P20,000.00) as attorney's fees to Maricar Bascos Baesa, plaintiff in Civil Case No.
to Maricar Baesa, and the total amount of Three 561-R, and the medical expenses in the sum of
Hundred Forty-Four Thousand Pesos P3,273.55, should be deducted from the award in
(P344,000.00) plus Ten Thousand Pesos her favor.
(P10,000.00) as attorney's fees to Fe Ico and her
children, and to pay the costs in both All the foregoing amounts herein awarded except
cases.  The dispositive portion of the assailed the costs shall earn interest at the legal rate from
decision reads as follows: date of this decision until fully paid.  [CA Decision,
pp. 14-15; Rollo, pp. 57-58.]
WHEREFORE, the decision appealed from is
hereby modified by ordering the defendant PANTRANCO filed a motion for reconsideration of
PANTRANCO North Express, Inc. to pay: the Court of Appeal's decision, but on June 26,
I.  The plaintiff in Civil Case No. 561- 1987, it denied the same for lack of
R, Maricar Bascos Baesa, the following damages: merit.  PANTRANCO then filed the instant petition
A)     As compensatory damages for the death for review.
of Ceasar Baesa - P30,000.00;
I
B)     As compensatory damages for the death of
Marilyn Baesa - P30,000.00; Petitioner faults the Court of Appeals for not
applying the doctrine of the "last clear chance"
C)    As compensatory damages for the death of against the jeepney driver.  Petitioner claims that
Harold Jim Baesa and Marcelino Baesa - under the circumstances of the case, it was the
P30,000.00; driver of the passenger jeepney who had the last
clear chance to avoid the collision and was

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WEEK 3 - TORTS

therefore negligent in failing to utilize with shoulder on his right without danger to himself or
reasonable care and competence his then existing his passengers.
opportunity to avoid the harm.
The above contention of petitioner is manifestly
The doctrine of the last clear chance was defined devoid of merit.
by this Court in the case
of Ong v. Metropolitan Water District, 104 Phil. Contrary to the petitioner's contention, the doctrine
397 (1958), in this wise: of "last clear chance" finds no application in
this case.  For the doctrine to be applicable, it is
The doctrine of the last clear chance simply necessary to show that the person who
means that the negligence of a claimant does allegedly had the last opportunity to avert the
not preclude a recovery for the negligence of accident was aware of the existence of the peril
defendant where it appears that the latter, by or should, with exercise of due care, have been
exercising reasonable care and prudence, aware of it.  One cannot be expected to avoid an
might have avoided injurious consequences to accident or injury if he does not know or could
claimant notwithstanding his negligence. not have known the existence of the peril.  In
this case, there is nothing to show that
The doctrine applies only in a situation where the jeepney driver David Ico knew of the
the plaintiff was guilty of prior or antecedent impending danger.  When he saw at a distance
negligence but the defendant, who had the last that the approaching bus was encroaching on
fair chance to avoid the impending harm and his lane, he did not immediately swerve
failed to do so, is made liable for all the the jeepney to the dirt shoulder on his right
consequences of the accident notwithstanding since he must have assumed that the bus driver
the prior negligence of the plaintiff [Picart v. will return the bus to its own lane upon seeing
Smith, 37 Phil 809 (1918); Glan People's Lumber the jeepney approaching from the opposite
and Hardware, et al. v. Intermediate Appellate direction.  As held by this Court in the case
Court, Cecilia Alferez Vda. de Calibo, et al., G.R. of Vda. De Bonifacio v. BLTB, G.R. No. L-26810,
No. 70493, May 18, 1989.] The subsequent August 31, 1970, 34 SCRA 618, a motorist who is
negligence of the defendant in failing to exercise properly proceeding on his own side of the highway
ordinary care to avoid injury to plaintiff becomes the is generally entitled to assume that an approaching
immediate or proximate cause of the accident vehicle coming towards him on the wrong side, will
which intervenes between the accident and the return to his proper lane of traffic.  There was
more remote negligence of the plaintiff, thus nothing to indicate to David Ico that the bus could
making the defendant liable to the plaintiff [Picart v. not return to its own lane or was prevented from
Smith, supra.] returning to the proper lane by anything beyond the
control of its driver.  Leo Marantan, an alternate
Generally, the last clear chance doctrine is invoked driver of the Pantranco bus who was seated beside
for the purpose of making a defendant liable to a the driver Ramirez at the time of the accident,
plaintiff who was guilty of prior or antecedent testified that Ramirez had no choice but to swerve
negligence, although it may also be raised as a the steering wheel to the left and encroach on
defense to defeat claim for damages. the jeepney's lane because there was a steep
precipice on the right [CA Decision, p. 2; Rollo, p.
To avoid liability for the negligence of its driver,
45.] However, this is belied by the evidence on
petitioner claims that the original negligence of its
record which clearly shows that there was enough
driver was not the proximate cause of the accident
space to swerve the bus back to its own lane
and that the sole proximate cause was the
without any danger [CA Decision, p. 7; Rollo, p. 50.]
supervening negligence of the jeepney driver
David Ico in failing to avoid the accident.  It is Moreover, both the trial court and the Court of
petitioner's position that even assuming arguendo, Appeals found that at the time of the accident
that the bus encroached into the lane of the Pantranco bus was speeding towards Manila
the jeepney, the driver of the latter could have [CA Decision, p. 2; Rollo, p. 45.] By the time
swerved the jeepney towards the spacious dirt David Ico must have realized that the bus was not

7
WEEK 3 - TORTS

returning to its own lane, it was already too late to the jeepney driver which would have made the
swerve the jeepney to his right to prevent an prior negligence of petitioner's driver a mere
accident.  The speed at which the approaching bus remote cause of the accident.
was running prevented David Ico from swerving
the jeepney to the right shoulder of the road in time II
to avoid the collision.  Thus, even assuming that
On the issue of its liability as an employer,
the jeepney driver perceived the danger a few
petitioner claims that it had observed the diligence
seconds before the actual collision, he had no
of a good father of a family to prevent damage,
opportunity to avoid it.  This Court has held that
conformably to the last paragraph of Article 2180 of
the last clear chance doctrine "can never apply
the Civil Code.  Petitioner adduced evidence to
where the party charged is required to act
show that in hiring its drivers, the latter are required
instantaneously, and if the injury cannot be
to have professional driver's license and police
avoided by the application of all means at hand
clearance.  The drivers must also pass written
after the peril is or should have been
examinations, interviews and practical driving tests,
discovered" [Ong v. Metropolitan Water
and are required to undergo a six-month training
District, supra.]
period.  Rodrigo San Pedro, petitioner's Training
Petitioner likewise insists that David Ico was Coordinator, testified on petitioner's policy of
negligent in failing to observe Section 43 (c), Article conducting regular and continuing training
III Chapter IV of Republic Act No. 4136* which programs and safety seminars for its drivers,
provides that the driver of a vehicle entering a conductors, inspectors and supervisors at a
through highway or a stop intersection shall yield frequency rate of at least two (2) seminars a month.
the right of way to all vehicles approaching in either
On this point, the Court quotes with approval the
direction on such through highway.
following findings of the trial court which was
Petitioner's misplaced reliance on the aforesaid law adopted by the Court of Appeals in its challenged
is readily apparent in this case.  The cited law itself decision:
provides that it applies only to vehicles entering a
When an injury is caused by the negligence of
through highway or a stop intersection.  At the time
an employee, there instantly arises a
of the accident, the jeepney had already crossed
presumption that the employer has been
the intersection and was on its way
negligent either in the selection of his
to Malalam River.  Petitioner itself cited
employees or in the supervision over their
Fe Ico's testimony that the accident occurred after
acts.  Although this presumption is only a
the jeepney had travelled a distance of about two
disputable presumption which could be
(2) meters from the point of intersection [Petition p.
overcome by proof of diligence of a good father
10; Rollo, p. 27.] In fact, even the witness for the
of a family, this Court believes that the evidence
petitioner, Leo Marantan, testified that both vehicles
submitted by the defendant to show that it
were coming from opposite directions [CA Decision,
exercised the diligence of a good father of a
p. 7; Rollo, p. 50], clearly indicating that
family in the case of Ramirez, as a company
the jeepney had already crossed the
driver is far from sufficient.  No support
intersection.
evidence has been adduced.  The professional
Considering the foregoing, the Court finds that driver's license of Ramirez has not been
the negligence of petitioner's driver in produced.  There is no proof that he is between
encroaching into the lane of the 25 to 38 years old.  There is also no proof as to
incoming jeepney and in failing to return the his educational attainment, his age, his weight
bus to its own lane immediately upon seeing and the fact that he is married or not.  Neither
the jeepney coming from the opposite direction are the result of the written test, psychological
was the sole and proximate cause of the and physical test, among other tests, have been
accident without which the collision would not submitted in evidence [sic].  His NBI or police
have occurred.  There was no supervening or clearances and clearances from previous
intervening negligence on the part of employment were not marked in evidence.  No

8
WEEK 3 - TORTS

evidence was presented that Ramirez actually its Training Coordinator, is insufficient to overcome
and really attended the seminars.  Vital evidence the presumption of negligence against petitioner.
should have been the certificate of attendance or
certificate of participation      or evidence of such III
participation like a logbook signed by the trainees
On the question of damages, petitioner claims that
when they attended the seminars.  If such records
the Court of Appeals erred in fixing the damages for
are not available, the testimony of the classmates
the loss of earning capacity of the deceased
that Ramirez was their classmate in said seminar
victims.  Petitioner assails respondent court's
(should have been presented) [CA Decision, pp. 8-
findings because no documentary evidence in
9; Rollo, pp. 51-52.]
support thereof, such as income tax returns, pay-
Petitioner contends that the fact
rolls, pay slips or invoices obtained in the usual
that Ambrosio Ramirez was employed and
course of business, were presented [Petition, p.
remained as its driver only means that he
22; Rollo, p. 39.] Petitioner argues that the "bare
underwent the same rigid selection process and
and self?serving testimonies of the wife of the
was subjected to the same strict supervision
deceased David Ico and the mother of the
imposed by petitioner on all applicants and
deceased Marilyn Baesa ... have no probative
employees.  It is argued by the petitioner that
value to sustain in law the Court of Appeals'
unless proven otherwise, it is presumed that
conclusion on the respective earnings of the
petitioner observed its usual recruitment procedure
deceased victims." [Petition, pp. 21-22; Rollo, pp.
and company policies on safety and efficiency
38-39.] It is petitioner's contention that the evidence
[Petition, p. 20; Rollo, p. 37.]
presented by the private respondent does not meet
The Court finds the above contention the requirements of clear and satisfactory evidence
unmeritorious. to prove actual and compensatory damages.

The finding of negligence on the part of its The Court finds that the Court of Appeals
driver Ambrosio Ramirez gave rise to the committed no reversible error in fixing the amount
presumption of negligence on the part of petitioner of damages for the loss of earning capacity of the
and the burden of proving that it exercised due deceased victims.  While it is true that private
diligence not only in the selection of its employees respondents should have presented documentary
but also in adequately supervising their work rests evidence to support their claim for damages for loss
with the petitioner (Lilius v. Manila Railroad of earning capacity of the deceased victims, the
Company, 59 Phil. 758 (1934), Umali v. Bacani, absence thereof does not necessarily bar the
G.R. No. L-40570, June 30, 1976, 69 SCRA recovery of the damages in question.  The
623.] Contrary to petitioner's claim, there is no testimony of Fe Ico and Francisca Bascos as to the
presumption that the usual recruitment procedures earning capacity of David Ico and the
and safety standards were observed.  The mere spouses Baesa, respectively, are sufficient to
issuance of rules and regulations and the establish a basis from which the court can make a
formulation of various company policies on safety, fair and reasonable estimate of the damages for the
without showing that they are being complied with, loss of earning capacity of the three deceased
are not sufficient to exempt petitioner from liability victims.  Moreover, in fixing the damages for loss of
arising from the negligence of its employee.  It is earning capacity of a deceased victim, the court
incumbent upon petitioner to show that in can consider the nature of his occupation, his
recruiting and employing the erring driver, the educational attainment and the state of his health at
recruitment procedures and company policies the time of death.
on efficiency and safety were
In the instant case, David Ico was thirty eight (38)
followed.  Petitioner failed to do this.  Hence, the
years old at the time of his death in 1981 and was
Court finds no cogent reason to disturb the finding
driving his own passenger jeepney.  The
of both the trial court and the Court of Appeals that
spouses Ceasar and Marilyn Baesa were both thirty
the evidence presented by the petitioner, which
(30) years old at the time of their
consists mainly of the uncorroborated testimony of
death.  Ceasar Baesa was a commerce degree

9
WEEK 3 - TORTS

holder and the proprietor of the Cauayan Press, SO ORDERED.

printer of the Cauayan Valley Newspaper and the
Valley Times Fernan, C.J., Gutierrez, Jr.,
at Cauayan, Isabela.  Marilyn Baesa graduated as Feliciano, and Bidin, JJ., concur.
a nurse in 1976 and at the time of her death, was
the company nurse, personnel manager, treasurer
and cashier of the Ilagan Press
at Ilagan, Isabela.  Respondent court duly
considered these factors, together with
the uncontradicted testimonies of Fe Ico and
Francisca Bascos, in fixing the amount of damages
for the loss of earning capacity of David Ico and the
spouses Baesa.
However, it should be pointed out that the Court of
Appeals committed error in fixing the compensatory
damages for the death of Harold
Jim Baesa and Marcelino Baesa.  Respondent
court awarded to plaintiff (private
respondent) Maricar Baesa Thirty Thousand Pesos
(P30,000.00) as "compensatory damages for the
death of Harold
Jim Baesa and Marcelino Baesa." [CA Decision,
p.14; Rollo, 57.] In other words, the Court of
Appeals awarded only Fifteen Thousand Pesos
(P15,000.00) as indemnity for the death of Harold
Jim Baesa and another Fifteen Thousand Pesos
(P15,000.00) for the death
of Marcelino Baesa.  This is clearly erroneous.  In
the case of People v. de la Fuente, G.R. Nos.
63251-52, December 29, 1983, 126 SCRA 518, the
indemnity for the death of a person was fixed by
this Court at Thirty Thousand Pesos
(P30,000.00).  Plaintiff Maricar Baesa should
therefore be awarded Sixty Thousand Pesos
(P60,000.00) as indemnity for the death of her
brothers, Harold
Jim Baesa and Marcelino Baesa or Thirty
Thousand Pesos (P30,000.00) for the death of
each brother.
The other items of damages awarded by
respondent court which were not challenged by the
petitioner are hereby affirmed.
WHEREFORE, premises considered, the petition is
DENIED, and the decision of respondent Court of
Appeals is hereby AFFIRMED with the modification
that the amount of compensatory damages for the
death of Harold
Jim Baesa and Marcelino Baesa are increased to
Thirty Thousand Pesos (P30,000.00) each.

10
WEEK 3 - TORTS

G.R. No. 70493 May 18, 1989 the law to the established facts. Compassion for
the plight of those whom an accident has robbed of
GLAN PEOPLE'S LUMBER AND HARDWARE, the love and support of a husband and fathermis
GEORGE LIM, FABIO S. AGAD, FELIX LIM and
an entirely natural and understandable sentiment.
PAUL ZACARIAS y INFANTE, petitioners, 
vs. It should not, however, be allowed to stand in the
INTERMEDIATE APPELLATE COURT, CECILIA way of, much less to influence, a just verdict in a
ALFEREZ VDA. DE CALIBO, Minors ROYCE suit at law.
STEPHEN, JOYCE JOAN, JANISE MARIE,
JACQUELINE BRIGITTE JOCELINE CORAZON, Same; Same; Same; Assertion that the judgment of
JULIET GERALDINE, JENNIFER JILL, all the Intermediate Appellate Court ignored or ran
surnamed CALIBO, represented by their
mother, CECILIA A. VDA. DE counter to the established facts meritorious. ___
CALIBO, respondents. The defendants George Lim, Felix Lim, Fabio S.
Agad and Paul Zacarias have appealed to this Court
Rufino Mayor and Isidro M. Ampig for petitioners.  on certiorari and pray for a reversal of the
judgment of the Intermediate Appellate Court
Manuel L. Hontanosas for private respondents.  which, it is claimed, ignored or ran counter to the
established facts. A review of the record confirms
 the merit of this assertion and persuades this Court
that said judgment indeed disregarded facts clearly
SYLLABUS:
and undisputably demonstrated by the proofs. The
appealed judgment, consequently, will have to be
reversed.
Civil Procedure; Evidence; The most obvious
exception to the familiar rule that the findings of Same; Same; Same; Same; Finding that the truck
fact of the trial court are observed and respected is driven by defendant Paul Zacarias occupied the
that said findings directly conflict with those of the lane of the jeep when the collision occurred is a
Trial Court. ___ In conclusion, it must also be stated loose one. ___ The finding that “the truck driven by
that there is no doubt of this Court’s power to defendant Paul Zacarias occupied the lane of the
review the assailed decision of the Intermediate jeep when the collision occurred” is a loose one,
Appellate Court under the authority of precedents based on nothing more than the showing at the
recognizing exceptions to the familiar rule binding time of the accident, the truck driven by Zacarias
it to observe and respect the latter’s findings of had edged over the painted center line of the road
fact. Many of those exceptions may be cited to into the opposite lane by a width of twenty-five
support the review here undertaken, but only the (25) centimeters. It ignores the fact that by the
most obvious ___ that said findings directly conflict uncontradicted evidence, the actual center line of
with those of the Trial Court ___ will suffice. In the the road was not that indicated by the painted
opinion of this Court and after a careful review of stripe but, according to measurements made and
the record, the evidence singularly fails to support testified to by Patrolman Juanito Dimaano, one of
the findings of the Intermediate Appellate Court the two officers who investigated the accident,
which, for all that appears, seem to have been correctly lay thirty-six (36) centimeters farther to
prompted rather by sympathy for the heirs of the the left of the truck’s side of said stripe.
deceased Engineer Calibo than by an objective
appraisal of the proofs and a correct application of
11
WEEK 3 - TORTS

Same; Same; Same; Appellate Court finding that of the accident. Zacarias had told Patrolman
Paulino Zacarias had acted negligently in applying Dimaano at the scene of the collision and later
his brakes instead of getting back inside his lane confirmed in his written statement at the police
upon espying the approaching jeep not correct. ___ headquarters that the jeep had been “zigzagging,”
Nor was the Appellate Court correct in finding that which is to say that it was travelling or being driven
Paulino Zacarias had acted negligently in applying erratically at the time. The other investigator,
his brakes instead of getting back inside his lane Patrolman Jose Esparcia, also testified that
upon espying the approaching jeep. Being well eyewitnesses to the accident had remarked on the
within his own lane, as has already been explained, jeep’s “zigzagging.” There is moreover more than a
he had no duty to swerve out of the jeep’s way as suggestion that Calibo had been drinking shortly
said Court would have had him do. And even before the accident. The decision of the Trial Court
supposing that he was in fact partly inside the adverts to further testimony of Esparcia to the
opposite lane, coming to a full stop with the jeep effect that three of Calibo’s companions at the
still thirty (30) meters away cannot be considered beach party he was driving home from when the
an unsafe or imprudent action, there also being collision occurred, who, having left ahead of him
uncontradicted evidence that the jeep was went to the scene when they heard about the
“zigzagging” and hence no way of telling in which accident, had said that there had been a drinking
direction it would go as it approached the truck. spree at the party and, referring to Calibo, had
remarked: “Sabi na huag nang mag drive . . .
Same; Same; Same; Finding of the Intermediate pumipilit,” (loosely translated, “He was advised not
Appellate Court that Zacarias had no driver’s to drive, but he insisted.”)
license at the time equally erroneous. ___ Also
clearly erroneous is the finding of the Intermediate Same; Same; Doctrine of Last Clear Chance;
Appellate Court that Zacarias had no driver’s Assuming some antecedent negligence on the part
license at the time. The traffic accident report of Zacarias, the physical facts would still absolve
attests to the proven fact that Zacarias voluntarily him of any actionable responsibility for the
surrendered to the investigating officers his driver’s accident under the rule of the last clear chance.
license, valid for 1979, that had been renewed just ___ Even, however, ignoring these telltale indicia of
the day before the accident, on July 3, 1979. The negligence on the part of Calibo, and assuming
Court was apparently misled by the circumstance some antecedent negligence on the part of
that when said driver was first asked to show his Zacarias in failing to keep within his designated
license by the investigators at the scene of the lane, incorrectly demarcated as it was, the physical
collision, he had first inadvertently produced the facts,either expressly found by the Intermediate
license of a fellow driver, Leonardo Baricuatro, who Appellate Court or which may be deemed
had left said license in Davao City and had asked conceded for lack of any dispute, would still
Zacarias to bring it back to him in Glan, Cotabato. absolve the latter of any actionable responsibility
for the accident under the rule of the last clear
Civil Law; Negligence; The evidence indicates that it chance.
was rather Engineer Calibo’s negligence that was
the proximate cause of the accident. ___ The Same; Same; Same; From the established facts, the
evidence not only acquits Zacarias of any logical conclusion emerges that the driver of the
negligence in the matter; there are also quite a few jeep has the clear chance to avoid the accident. ___
significant indicators that it was rather Engineer Both Drivers, as the Appellate Court found, had had
Calibo’s negligence that was the proximate cause a full view of each other’s vehicle from a distance

12
WEEK 3 - TORTS

of one hundred fifty meters. Both vehicles were doctrine laid done many, many years ago in Picart
travelling at a speed of approximately thirty vs. Smith 1 continues to be good law to this day. 
kilometers per hour. The private respondents have
The facts giving rise to the controversy at bar are
admitted that the truck was already at a full stop
tersely and quite accurately recounted by the Trial
when the jeep plowed into it. And they have not Court as follows:2
seen fit to deny or impugn petitioners’ imputation
that they also admitted the truck had been brought Engineer Orlando T. Calibo, Agripino
to a stop while the jeep was still thirty meters Roranes, and Maximo Patos were on the
away. From this facts the logical conclusion jeep owned by the Bacnotan Consolidated
emerges that the driver of the jeep had what Industries, Inc., with Calibo at the wheel, as
it approached from the South Lizada Bridge
judicial doctrine has appropriately called the last
going towards the direction of Davao City at
clear chance to avoid the accident, while still at about 1:45 in the afternoon of July 4,1979.
that distance of thirty meters from the truck, by At about that time, the cargo track, loaded
stopping in his turn or swerving his jeep away from with cement bags, GI sheets, plywood,
the truck, either of which he had sufficient time to driven by defendant Paul Zacarias y Infants,
do while running at a speed of only thirty coming from the opposite direction of Davao
kilometers per hour. In those circumstances, his City and bound for Glan, South Cotabato,
had just crossed said bridge. At about 59
duty was to seize that opportunity of avoidance, yards after crossing the bridge, the cargo
not merely rely on a supposed right to expect, as truck and the jeep collided as a
the Appellate Court would have it, the truck to consequence of which Engineer Calibo died
swerve and leave him a clear path. while Roranes and Patos sustained physical
injuries. Zacarias was unhurt. As a result of
Same; Same; Same; The doctrine invoked and the impact, the left side of the truck was
slightly damaged while the left side of the
applied in the 1918 case of Picart vs. Smith jeep, including its fender and hood, was
continued to be good law to this day. ___ The extensively damaged. After the impact, the
doctrine of the last clear chance provides as valid jeep fell and rested on its right side on the
and complete a defense to accident liability today asphalted road a few meters to the rear of
as it did when invoked and applied in the 1918 case the truck, while the truck stopped on its
of Picart vs. Smith, supra, which involved a similar wheels on the road. 
state of facts. Glan People's Lumber and Hardware
On November 27, 1979, the instant case for
vs. IAC, 173 SCRA 464, G.R. No. 70493 May 18, damages was filed by the surviving spouse
1989 and children of the late Engineer Calibo who
are residents of Tagbilaran City against the
NARVASA, J.: driver and owners of the cargo truck. 

There is a two-fold message in this judgment that For failure to file its answer to the third party
bears stating at the outset. The first, an obvious complaint, third party defendant, which
one, is that it is the objective facts established by insured the cargo truck involved, was
proofs presented in a controversy that determine declared in default. 
the verdict, not the plight of the persons involved,
no matter how deserving of sympathy and The case filed by the heirs of Engineer Calibo his
commiseration because, for example, an accident widow and minor children, private respondents
of which they are the innocent victims has brought herein was docketed as 
them to. reduced circumstances or otherwise
tragically altered their lives. The second is that the Civil Case No. 3283 of the Court of First Instance of
Bohol. 3 Named defendants in the complaint were
13
WEEK 3 - TORTS

"Felix S. Agad, George Lim and Felix Lim . . . (who) and the police investigators Dimaano and
appear to be the co-owners of the Glan People's Esparcia."8
Lumber and Hardware . . . (and) Paul Zacarias y
Infante." 4 The defendants' answer however alleged 4. That there were skid marks left by the
that the lumber and hardware business was truck's tires at the scene, and none by the
exclusively owned by George Y. Lim, this being jeep, demonstrates that the driver of the
evidenced by the Certificate of Registration issued truck had applied the brakes and the jeep's
by the Bureau of Domestic Trade; Fabio S. Agad driver had not; and that the jeep had on
was not a co-owner thereof but "merely employed impact fallen on its right side is indication
by . . . George Y. Lim as bookkeeper"; and Felix that it was running at high speed. Under the
Lim had no connection whatever with said circumstances, according to the Court,
business, "he being a child only eight (8) years of given "the curvature of the road and the
age." 5 descending grade of the jeep's lane, it was
negligence on the part of the driver of
"After (trial, and) a careful evaluation of the the jeep, Engr. Calibo, for not reducing
evidence, both testimonial and documentary," the his speed upon sight of the truck and
Court reached the conclusion "that the plaintiffs failing to apply the brakes as he got
failed to establish by preponderance of evidence within collision range with the truck." 
the negligence, and thus the liability, of the
defendants." Accordingly, the Court dismissed the 5. Even if it be considered that there was
complaint (and defendants' counterclaim) "for some antecedent negligence on the part of
insufficiency of evidence." Likewise dismissed was Zacarias shortly before the collision, in that
third-party complaint presented by the defendants he had caused his truck to run some 25
against the insurer of the truck. The circumstances centimeters to the left of the center of the
leading to the Court's conclusion just mentioned, road, Engr. Calibo had the last clear chance
are detailed in the Court's decision, as follows:  of avoiding the accident because he still had
ample room in his own lane to steer clear of
1. Moments before its collission with the the truck, or he could simply have braked to
truck being operated by Zacarias, the jeep a full stop. 
of the deceased Calibo was "zigzagging." 6
The Court of Appeals saw things differently.
2. Unlike Zacarias who readily submitted It rendered judgment 9 on the plaintiffs'
himself to investigation by the police, appeal, l0 reversing the decision of the Trial Court.
Calibo's companions, Roranes (an It found Zacarias to be negligent on the basis of the
accountant), and Patos, who suffered following circumstances, to wit: 
injuries on account of the collision, refused
to be so investigated or give statements to 1) "the truck driven by defendant
the police officers. This, plus Roranes' Zacarias occupied the lane of the jeep
waiver of the right to institute criminal when the collision occurred,' and
proceedings against Zacarias, and the fact although Zacarias saw the jeep from a
that indeed no criminal case was ever distance of about 150 meters, he "did not
instituted in Court against Zacarias, were drive his truck back to his lane in order
"telling indications that they did not attribute to avoid collision with the oncoming jeep
the happening to defendant Zacarias' . . .;" 11 what is worse, "the truck driver
negligence or fault."7 suddenly applied his brakes even as he
knew that he was still within the lane of the
3. Roranes' testimony, given in plaintiffs' jeep;"12 had both vehicles stayed in their
behalf, was "not as clear and detailed as respective lanes, the collision would never
that of . . . Zacarias," and was "uncertain have occurred, they would have passed
and even contradicted by the physical facts "along side each other safely;"13

14
WEEK 3 - TORTS

2) Zacarias had no license at the time; what painted stripe but, according to measurements
he handed to Pfc. Esparcia, on the latter's made and testified by Patrolman Juanita Dimaano,
demand, was the 'driver's license of his co- one of the two officers who investigated the
driver Leonardo Baricuatro;" 14 accident, correctly lay thirty-six (36) centimeters
farther to the left of the truck's side of said stripe. 
3) the waiver of the right to file criminal
charges against Zacarias should not be The unimpugned testimony of Patrolman Dimaano,
taken against "plaintiffs" Roranes and Patos a witness for the private respondents, is to the
who had the right, under the law, to opt effect that the jeep's lane was three (3) meters and
merely to bring a civil suit.15 seventy-five (75) centimeters wide, and that of the
truck three (3) meters and three (3) centimeters,
The Appellate Court opined that Zacarias' measured from the center stripe to the
negligence "gave rise to the presumption of corresponding side lines or outer edges of the
negligence on the part of his employer, and their road. 17The total width of the road being, therefore,
liability is both primary and solidary." It therefore six (6) meters and seventy-eight (78) centimeters,
ordered "the defendants jointly and solidarily to the true center line equidistant from both side lines
indemnify the plaintiffs the following amounts:  would divide the road into two lanes each three
(meters) and thirty-nine (39) centimeters wide.
(1) P30,000.00 for the death of Orlando Thus, although it was not disputed that the
Calibo;  truck overrode the painted stripe by twenty-five
(25) centimeters, it was still at least eleven (11)
(2) P378,000.00 for the loss of earning centimeters away from its side of the true
capacity of the deceased  center line of the road and well inside its own
lane when the accident occurred. By this same
(3) P15,000.00 for attorney's fees;  reckoning, since it was unquestionably the jeep
that rammed into the stopped truck, it may also
be deduced that it (the jeep) was at the time
(4) Cost of suit. 16
travelling beyond its own lane and intruding
into the lane of the truck by at least the same
The defendants George Lim, Felix Lim, Fabio S. 11-centimeter width of space. 
Agad and Paul Zacarias have appealed to this
Court on certiorariand pray for a reversal of the
Not only was the truck's lane, measured from the
judgment of the Intermediate Appellate Court
incorrectly located center stripe uncomfortably
which, it is claimed, ignored or ran counter to the
narrow, given that vehicle's width of two (2) meters
established facts. A review of the record confirms
and forty-six (46) centimeters; the adjacent road
the merit of this assertion and persuades this Court
shoulder was also virtually impassable, being about
that said judgment indeed disregarded facts clearly
three (3) inches lower than the paved surface of the
and undisputably demonstrated by the proofs. The
road and "soft--not firm enough to offer traction for
appealed judgment, consequently, will have to be
safe passage — besides which, it sloped gradually
reversed. 
down to a three foot-deep ravine with a river
below.18 The truck's lane as erroneously
The finding that "the truck driven by defendant demarcated by the center stripe gave said vehicle
Paul Zacarias occupied the lane of the jeep barely half a meter of clearance from the edge of
when the collision occurred" is a loose one, the road and the dangerous shoulder and little
based on nothing more than the showing that at room for maneuver, in case this was made
the time of the accident, the truck driven by necessary by traffic contingencies or road
Zacarias had edged over the painted center line conditions, if it always kept to said lane. It being
of the road into the opposite lane by a width of also shown that the accident happened at or near
twenty-five (25) centimeters. It ignores the fact the point of the truck's approach to a curve, 19 which
that by the uncontradicted evidence, the actual called for extra precautions against driving too near
center line of the road was not that indicated by the the shoulder, it could hardly be accounted negligent
15
WEEK 3 - TORTS

on the part of its driver to intrude temporarily, and investigator, Patrolman Jose Esparcia, also testified
by only as small as a twenty-five centimeter wide that eyewitnesses to the accident had remarked on
space (less than ten inches), into the opposite lane the jeep's "zigzagging." 24 There is moreover
in order to insure his vehicle's safety. This, even more than a suggestion that Calibo had been
supposing that said maneuver was in fact an drinking shortly before the accident. The decision
intrusion into the opposite lane, which was not the of the Trial Court adverts to further testimony of
case at all as just pointed out.  Esparcia to the effect that three of Calibo's
companions at the beach party he was driving
Nor was the Appellate Court correct in finding home from when the collision occurred, who,
that Paulino Zacarias had acted negligently in having left ahead of him went to the scene
applying his brakes instead of getting back when they heard about the accident, had said
inside his lane upon qqqespying the that there had been a drinking spree at the party
approaching jeep. Being well within his own and, referring to Calibo, had remarked: "Sabi na
lane, as has already been explained, he had no huag nang mag drive . . . . pumipilit," (loosely
duty to swerve out of the jeep's way as said translated, "He was advised not to drive, but he
Court would have had him do. And even insisted.") 
supposing that he was in fact partly inside the
opposite lane, coming to a full stop with the jeep It was Calibo whose driver's license could not be
still thirty (30) meters away cannot be considered found on his person at the scene of the accident,
an unsafe or imprudent action, there also being and was reported by his companions in the jeep as
uncontradicted evidence that the jeep was having been lost with his wallet at said scene,
"zigzagging"20 and hence no way of telling in according to the traffic accident report, Exhibit "J".
which direction it would go as it approached the Said license unexplainedly found its way into the
truck.  record some two years later. 

Also clearly erroneous is the finding of the Reference has already been made to the finding of
Intermediate Appellate Court that Zacarias had no the Trial Court that while Zacarias readily submitted
driver's license at the time. The traffic accident to interrogation and gave a detailed statement to
report attests to the proven fact that Zacarias the police investigators immediately after the
voluntarily surrendered to the investigating accident, Calibo's two companions in the jeep and
officers his driver's license, valid for 1979, that supposed eyewitnesses, Agripino Roranes and
had been renewed just the day before the Maximo Patos, refused to give any statements.
accident, on July 3, 1979.21 The Court was Furthermore, Roranes who, together with Patos,
apparently misled by the circumstance that when had sustained injuries as a result of the collision,
said driver was first asked to show his license by waived his right to file a criminal case against
the investigators at the scene of the collision, he Zacarias. 25
had first inadvertently produced the license of a
fellow driver, Leonardo Baricuatro, who had left Even, however, ignoring these telltale indicia of
said license in Davao City and had asked Zacarias negligence on the part of Calibo, and assuming
to bring it back to him in Glan, Cotabato.22 some antecedent negligence on the part of
Zacarias in failing to keep within his designated
The evidence not only acquits Zacarias of any lane, incorrectly demarcated as it was, the physical
negligence in the matter; there are also quite a few facts, either expressly found by the Intermediate
significant indicators that it was rather Engineer Appellate Court or which may be deemed
Calibo's negligence that was the proximate cause conceded for lack of any dispute, would still
of the accident. Zacarias had told Patrolman absolve the latter of any actionable responsibility
Dimaano at the scene of the collision and later for the accident under the rule of the last clear
confirmed in his written statement at the police chance. 
headquarters 23 that the jeep had been
"zigzagging," which is to say that it was travelling or Both drivers, as the Appellate Court found, had had
being driven erratically at the time. The other a full view of each other's vehicle from a distance of
16
WEEK 3 - TORTS

one hundred fifty meters. Both vehicles were determining cause of the accident and that of
travelling at a speed of approximately thirty the plaintiff ". . . the more remote factor in the
kilometers per hour. 26 The private respondents case": 
have admitted that the truck was already at a
full stop when the jeep plowed into it. And they It goes without saying that the plaintiff
have not seen fit to deny or impugn petitioners' himself was not free from fault, for he was
imputation that they also admitted the truck had guilty of antecedent negligence in planting
been brought to a stop while the jeep was still himself on the wrong side of the road. But
thirty meters away.27 From these facts the as we have already stated, the defendant
logical conclusion emerges that the driver of was also negligent; and in such case the
the jeep had what judicial doctrine has problem always is to discover which agent
appropriately called the last clear chance to is immediately and directly responsible. It
avoid the accident, while still at that distance of will be noted that the negligent acts of the
thirty meters from the truck, by stopping in his two parties were not contemporaneous,
turn or swerving his jeep away from the truck, since the negligence of the defendant
either of which he had sufficient time to do succeeded the negligence of the plaintiff by
while running at a speed of only thirty an appreciable interval. Under these
kilometers per hour. In those circumstances, his circumstances the law is that the person
duty was to seize that opportunity of avoidance, not who has the last fair chance to avoid the
merely rely on a supposed right to expect, as the impending harm and fails to do so is
Appellate Court would have it, the truck to swerve chargeable with the consequences, without
and leave him a clear path.  reference to the prior negligence of the
other party. 
The doctrine of the last clear chance provides as
valid and complete a defense to accident liability Since said ruling clearly applies to exonerate
today as it did when invoked and applied in the petitioner Zacarias and his employer (and co-
1918 case of Picart vs. Smith, supra, which petitioner) George Lim, an inquiry into whether or
involved a similar state of facts. Of those facts, not the evidence supports the latter's additional
which should be familiar to every student of law, it defense of due diligence in the selection and
is only necessary to recall the summary made in supervision of said driver is no longer necessary
the syllabus of this Court's decision that:  and wig not be undertaken. The fact is that there is
such evidence in the record which has not been
(t)he plaintiff was riding a pony on a bridge. controverted. 
Seeing an automobile ahead he improperly
pulled his horse over to the railing on the It must be pointed out, however, that the
right. The driver of the automobile, however Intermediate Appellate Court also seriously erred in
guided his car toward the plaintiff without holding the petitioners Pablo S. Agad and Felix Lim
diminution of speed until he was only few solidarily liable for the damages awarded in its
feet away. He then turned to the right but appealed decision, as alleged owners, with
passed so closely to the horse that the latter petitioner George Lim, of Glan People's Lumber
being frightened, jumped around and was and Hardware, employer of petitioner Zacarias.
killed by the passing car. . . . . This manifestly disregarded, not only the certificate
of registration issued by the Bureau of Domestic
Plaintiff Picart was thrown off his horse and Trade identifying Glan People's Lumber and
suffered contusions which required several days of Hardware as a business name registered by
medical attention. He sued the defendant Smith for George Lim, 28 but also unimpugned allegations into
the value of his animal, medical expenses and the petitioners' answer to the complaint that Pablo
damage to his apparel and obtained judgment from S. Agad was only an employee of George Lim and
this Court which, while finding that there was that Felix Lim, then a child of only eight (8) years,
negligence on the part of both parties, held that that was in no way connected with the business. 
of the defendant was the immediate and
17
WEEK 3 - TORTS

In conclusion, it must also be stated that there is no

doubt of this Court's power to review the assailed
decision of the Intermediate Appellate Court under
the authority of precedents recognizing exceptions
to the familiar rule binding it to observe and respect
the latter's findings of fact. Many of those
exceptions may be cited to support the review here
undertaken, but only the most obvious — that said
findings directly conflict with those of the Trial Court
— will suffice.29 In the opinion of this Court and after
a careful review of the record, the evidence
singularly fails to support the findings of the
Intermediate Appellate Court which, for all that
appears, seem to have been prompted rather by
sympathy for the heirs of the deceased Engineer
Calibo than by an objective appraisal of the proofs
and a correct application of the law to the
established facts. Compassion for the plight of
those whom an accident has robbed of the love and
support of a husband and father is an entirely
natural and understandable sentiment. It should
not, however, be allowed to stand in the way of,
much less to influence, a just verdict in a suit at
law. 

WHEREFORE, the appealed judgment of the

Intermediate Appellate Court is hereby
REVERSED, and the complaint against herein
petitioners in Civil Case No. 3283 of the Court of
First Instance of Bohol, Branch IV, is DISMISSED.
No pronouncement as to costs. 

SO ORDERED.

18
WEEK 3 - TORTS

19
WEEK 3 - TORTS

G.R. Nos. 66102-04 August 30, 1990 action for damages against the carrier for his
failure to safely carry his passenger to his
PHILIPPINE RABBIT BUS LINES, destination, an accident caused either by defects in
INC., petitioner, 
the automobile or through the negligence of its
vs.
THE HONORABLE INTERMEDIATE APPELLATE driver, is not a caso fortuito which would avoid the
COURT AND CASIANO PASCUA, ET carrier’s liability for damages.
AL., respondents.
Same; Same; Same; Same; Same; Driver,not jointly
SYLLABUS: and severally liable with carrier in case of breach of
contract of carriage.—The trial court was therefore
Civil Law; Contracts; Torts and damages; Doctrine right in finding that Manalo and spouses Mangune
of last clear chance applies in a suit between the and Carreon were negligent. However, its ruling
owners and drivers of two colliding vehicles, not that spouses Mangune and Carreon are jointly and
where the passenger demands responsibility from severally liable with Manalo is erroneous. The
the carrier to enforce contractual obligations.—We driver cannot be held jointly and severally liable
reiterate that “[t]he principle about the ‘last clear with the carrier in case of breach of the contract of
chance’ would call for application in a suit between carriage. The rationale behind this is readily
the owners and drivers of the two colliding discernible. Firstly, the contract of carriage is
vehicles. It does not arise where a passenger between the carrier and the passenger, and in the
demands responsibility from the carrier to enforce event of contractual liability, the carrier is
its contractual obligations. For it would be exclusively responsible therefor to the passenger,
inequitable to exempt the negligent driver of the even if such breach be due to the negligence of his
jeepney and its owners on the ground that the driver (see Viluan v. The Court of Appeals, et al.,
other driver was likewise guilty of negligence.” This G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742).
was Our ruling in Anuran, et al. v. Buño, et al., G.R. In other words, the carrier can neither shift his
Nos. L-21353 and L-21354, May 20, 1966, 17 SCRA liability on the contract to his driver nor share it
224. Thus, the respondent court erred in applying with him, for his driver’s negligence is his.
said doctrine. Secondly, if We make the driver jointly and
severally liable with the carrier, that would make
Same; Same; Same; Carrier, presumed at fault or the carrier’s liability personal instead of merely
negligent, the moment a passenger dies or is vicarious and consequently, entitled to recover
injured.—In culpa contractual, the moment a only the share which corresponds to the driver,
passenger dies or is injured, the carrier is presumed contradictory to the explicit provision of Article
to have been at fault or to have acted negligently, 2181 of the New Civil Code.
and this disputable presumption may only be
overcome by evidence that he had observed extra-
ordinary diligence as prescribed in Articles 1733, MEDIALDEA, J.:
1755 and 1756 of the New Civil Code or that the
death or injury of the passenger was due to a This is a petition for review on certiorari of the
forfuitous event. decision of the Intermediate Appellate Court (now
Court of Appeals) dated July 29, 1983 in AC-G.R.
Nos. CV-65885, CV-65886 and CV-65887 which
Same; Same; Same; Same; Accident caused either reversed the decision of the Court of First Instance
by defects in the automobile or negligence of (now Regional Trial Court) of Pangasinan dated
driver, not a caso fortuito.—In any event, “[i]n an December 27, 1978; and its resolution dated
20
WEEK 3 - TORTS

November 28, 1983 denying the motion for came) and its rear faced the north (towards where it
reconsideration. was going). The jeepney practically occupied and
blocked the greater portion of the western lane,
It is an established principle that the factual findings which is the right of way of vehicles coming from
of the Court of Appeals are final and may not be the north, among which was Bus No. 753 of
reviewed by this Court on appeal. However, this petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit)
principle is subject to certain exceptions. One of driven by Tomas delos Reyes. Almost at the time
these is when the findings of the appellate court are when the jeepney made a sudden U-turn and
contrary to those of the trial court (see Sabinosa v. encroached on the western lane of the highway
The Honorable Court of Appeals, et al., G.R. No. L- as claimed by Rabbit and delos Reyes, or after
47981, July 24, 1989) in which case, a re- stopping for a couple of minutes as claimed by
examination of the facts and evidence may be Mangune, Carreon and Manalo, the bus bumped
undertaken. This is Our task now. from behind the right rear portion of the
jeepney. As a result of the collision, three
The antecedent facts are as follows: passengers of the jeepney (Catalina Pascua,
Erlinda Meriales and Adelaida Estomo) died
About 11:00 o'clock in the morning on December while the other jeepney passengers sustained
24, 1966, Catalina Pascua, Caridad Pascua, physical injuries. What could have been a festive
Adelaida Estomo, Erlinda Meriales, Mercedes Christmas turned out to be tragic.
Lorenzo, Alejandro Morales and Zenaida Parejas
boarded the jeepney owned by spouses Isidro The causes of the death of the three jeepney
Mangune and Guillerma Carreon and driven by passengers were as follows (p. 101, Record on
Tranquilino Manalo at Dau, Mabalacat, Pampanga Appeal):
bound for Carmen, Rosales, Pangasinan to spend
Christmas at their respective homes. Although they The deceased Catalina Pascua suffered the
usually ride in buses, they had to ride in a jeepney following injuries, to wit: fracture of the left
that day because the buses were full. Their contract parietal and temporal regions of the skull;
with Manalo was for them to pay P24.00 for the trip. fracture of the left mandible; fracture of the
The private respondents' testimonial evidence on right humenous; compound fracture of the
this contractual relationship was not controverted left radious and ullma middle third and lower
by Mangune, Carreon and Manalo, nor by Filriters third; fracture of the upper third of the right
Guaranty Assurance Corporation, Inc., the insurer tibia and fillnea; avulsion of the head, left
of the jeepney, with contrary evidence. Purportedly internal; and multiple abrasions. The cause
riding on the front seat with Manalo was Mercedes of her death was shock, secondary to
Lorenzo. On the left rear passenger seat were fracture and multiple hemorrhage. The
Caridad Pascua, Alejandro Morales and Zenaida fractures were produced as a result of the
Parejas. On the right rear passenger seat were hitting of the victim by a strong force. The
Catalina Pascua, Adelaida Estomo, and Erlinda abrasions could be produced when a
Meriales. After a brief stopover at Moncada, Tarlac person falls from a moving vehicles (sic)
for refreshment, the jeepney proceeded towards and rubs parts of her body against a cement
Carmen, Rosales, Pangasinan. road pavement. . . . 

Upon reaching barrio Sinayoan, San Manuel, Erlinda Mariles (sic) sustained external
Tarlac, the right rear wheel of the jeepney was lesions such as contusion on the left parietal
detached, so it was running in an unbalanced region of the skull; hematoma on the right
position. Manalo stepped on the brake, as a result upper lid; and abrasions (sic) on the left
of which, the jeepney which was then running on knee. Her internal lesions were: hematoma
the eastern lane (its right of way) made a U-turn, on the left thorax; multiple lacerations of the
invading and eventually stopping on the western left lower lobe of the lungs; contusions on
lane of the road in such a manner that the the left lower lobe of the lungs; and simple
jeepney's front faced the south (from where it fractures of the 2nd, 3rd, 4th, 5th, 6th, 7th,
21
WEEK 3 - TORTS

and 8th ribs, left. The forcible impact of the Pascua"), the lifeless body of Catalina
jeep caused the above injuries which Pascua (Exh. "P-2 Pascua"), and the
resulted in her death. . . . damaged front part of the Rabbit bus (Exh.
"P-3 Pascua"). No skid marks of the Rabbit
The cause of death of Erlinda or Florida bus was found in the vicinity of the collision,
Estomo (also called as per autopsy of Dr. before or after the point of impact. On the
Panlasiqui was due to shock due to internal other hand, there was a skid mark about 45
hemorrhage, ruptured spleen and trauma. . . meters long purportedly of the jeepney from
. the eastern shoulder of the road south of,
and extending up to the point of impact.
Caridad Pascua suffered physical injuries as
follows (p. 101, Record on Appeal): At the time and in the vicinity of the accident, there
were no vehicles following the jeepney, neither
. . . lacerated wound on the forehead and were there oncoming vehicles except the bus. The
occipital region, hematoma on the forehead, weather condition of that day was fair.
multiple abrasions on the forearm, right
upper arm, back and right leg. . . . After conducting the investigation, the police filed
with the Municipal Court of San Manuel, Tarlac, a
The police investigators of Tacpal and policemen of criminal complaint against the two drivers for
San Manuel, Tarlac, Tarlac, upon arrival at the Multiple Homicide. At the preliminary investigation,
scene of the mishap, prepared a sketch (common a probable cause was found with respect to the
exhibit "K" for private respondents "19" for Rabbit) case of Manalo, thus, his case was elevated to the
showing the relative positions of the two vehicles as Court of First Instance. However, finding no
well as the alleged point of impact (p. 100, Record sufficiency of evidence as regards the case of delos
on Appeal): Reyes, the Court dismissed it. Manalo was
convicted and sentenced to suffer
. . . The point of collision was a cement imprisonment. Not having appealed, he served
pave-portion of the Highway, about six (6) his sentence.
meters wide, with narrow shoulders with
grasses beyond which are canals on both Complaints for recovery of damages were then filed
sides. The road was straight and points 200 before the Court of First Instance of Pangasinan. In
meters north and south of the point of Civil Case No. 1136, spouses Casiano Pascua and
collision are visible and unobstructed. Juana Valdez sued as heirs of Catalina Pascua
Purportedly, the point of impact or collision while Caridad Pascua sued in her behalf. In Civil
(Exh. "K-4", Pascua on the sketch Exh. "K"- Case No. 1139, spouses Manuel Millares and
Pascua) was on the western lane of the Fidencia Arcica sued as heirs of Erlinda Meriales.
highway about 3 feet (or one yard) from the In Civil Case No. 1140, spouses Mariano Estomo
center line as shown by the bedris (sic), dirt and Dionisia Sarmiento also sued as heirs of
and soil (obviously from the undercarriage Adelaida Estomo. 
of both vehicles) as well as paint, marron
(sic) from the Rabbit bus and greenish from In all three cases, spouses Mangune and Carreon,
the jeepney. The point of impact encircled Manalo, Rabbit and delos Reyes were all
and marked with the letter "X" in Exh. "K"-4 impleaded as defendants. Plaintiffs anchored their
Pascua, had a diameter of two meters, the suits against spouses Mangune and Carreon and
center of which was about two meters from Manalo on their contractual liability. As against
the western edge of cement pavement of Rabbit and delos Reyes, plaintiffs based their suits
the roadway. Pictures taken by witness on their culpability for a quasi-delict. Filriters
Bisquera in the course of the investigation Guaranty Assurance Corporation, Inc. was also
showed the relative positions of the point of impleaded as additional defendant in Civil Case No.
impact and center line (Exh. "P"-Pascua) 1136 only.
the back of the Rabbit bus (Exh. "P"-1-
22
WEEK 3 - TORTS

For the death of Catalina Pascua, plaintiffs in Civil a) In Civil Case No. 1136, for the death of
Case No. 1136 sought to collect the aggregate Catalina Pascua, to pay her heirs the
amount of P70,060.00 in damages, itemized as amounts of P12,000.00 for indemnity for
follows: P500.00 for burial expenses; P12,000.00 loss of her life; P41,760.00 for loss of
for loss of wages for 24 years; P10,000.00 for earnings; P324.40 for actual expenses and
exemplary damages; P10,000.00 for moral P2,000.00 for moral damages;
damages; and P3,000.00 for attorney's fees. In the
same case, plaintiff Caridad Pascua claimed b) In the same Civil Case No.1136 for the
P550.00 for medical expenses; P240.00 for loss of injuries of Caridad Pascua, to pay her the
wages for two months; P2,000.00 for disfigurement amounts of P240.00 for loss of wages,
of her face; P3,000.00 for physical pain and P328.20 for actual expenses and P500.00
suffering; P2,500.00 as exemplary damages and for moral damages;
P2,000.00 for attorney's fees and expenses of
litigation. c) In Civil Case No.1139 for the death of
Erlinda Meriales, to pay her heirs (the
In Civil Case No. 1139, plaintiffs demanded plaintiffs) the amount of P12,000.00 — for
P500.00 for burial expenses; P6,000.00 for the indemnity for loss of her life; P622.00 for
death of Erlinda, P63,000.00 for loss of income; actual expenses, P60,480.00 for loss of
P10,000.00 for moral damages and P3,000.00 for wages or income and P2,000.00 for moral
attorney's fees or total of P80,000.00. damages;

In Civil Case No. 1140, plaintiffs claimed P500.00 d) In Civil Case No. 1140, for the death of
for burial expenses; P6,000.00 for the death of Erlinda (also called Florida or Adelaida
Adelaide, P56,160.00 for loss of her income or Estomo), to pay her heirs (the plaintiff the
earning capacity; P10,000.00 for moral damages; amount of P12,000.00 for indemnity for the
and P3,000.00 for attorney's fees. loss of her life; P580.00 for actual
expenses; P53,160.00 for loss of wages or
Rabbit filed a cross-claim in the amount of income and P2,000.00 for moral damages.
P15,000.00 for attorney's fees and expenses of
litigation. On the other hand, spouses Mangune 2) The defendant Filriters Guaranty
and Carreon filed a cross-claim in the amount of Insurance Co., having contracted to ensure
P6,168.00 for the repair of the jeepney and and answer for the obligations of
P3,000.00 for its non-use during the period of defendants Mangune and Carreon for
repairs. damages due their passengers, this Court
renders judgment against the said
On December 27, 1978, the trial court rendered its defendants Filriters Guaranty Insurance
decision finding Manalo negligent, the dispositive Co., jointly and severally with said
portion of which reads (pp. 113-114, Record on defendants (Mangune and Carreon) to pay
Appeal): the plaintiffs the amount herein above
adjudicated in their favor in Civil Case No.
PREMISES CONSIDERED, this Court is of the 1136 only. All the amounts awarded said
opinion and so holds: plaintiff, as set forth in paragraph one (1)
hereinabove;
1) That defendants Isidro Mangune,
Guillerma Carreon and Tranquilino Manalo 3) On the cross claim of Phil. Rabbit Bus
thru their negligence, breached contract of Lines, Inc. ordering the defendant, Isidro
carriage with their passengers the plaintiffs' Mangune, Guillerma Carreon and
and/or their heirs, and this Court renders Tranquilino Manalo, to pay jointly and
judgment ordering said defendants, jointly severally, cross-claimant Phil. Rabbit Bus
and severally, to pay the plaintiffs — Lines, Inc., the amounts of P216.27 as

23
WEEK 3 - TORTS

actual damages to its Bus No. 753 and c) Actual damages (burial expenses)
P2,173.60 for loss of its earning. — 800.00

All of the above amount, shall bear legal d) For moral damages — 10,000.00
interest from the filing of the complaints.
e) Exemplary damages — 3,000.00
Costs are adjudged against defendants
Mangune, Carreon and Manalo and Filriters f) For attorney's fees — 3,000.00
Guaranty.
—————
SO ORDERED
Total — P38,200.00 (sic)
On appeal, the Intermediate Appellate Court
reversed the above-quoted decision by finding For the physical injuries suffered by Caridad
delos Reyes negligent, the dispositive portion of Pascua:
which reads (pp. 55-57, Rollo):
Civil Case No. 1136
WHEREFORE, PREMISES CONSIDERED,
the lower court's decision is hereby a) Actual damages (hospitalization
REVERSED as to item No. 3 of the decision expenses) — P550.00
which reads:
b) Moral damages (disfigurement of
3) On the cross claim of Philippine Rabbit the
Bus Lines, Inc. ordering the defendants
Isidro Mangune, Guillerma Carreon and face and physical suffering —
Tranquilino Manalo, to pay jointly and 8,000.00
severally, the amounts of P216.27 as actual
damages to its Bus No. 753 and P2,173.60
c) Exemplary damages — 2,000.00
for loss of its earnings.
—————
and another judgment is hereby rendered in
favor of plaintiffs-appellants Casiana
Pascua, Juan Valdez and Caridad Pascua, Total — P10,550.00
ordering the Philippine Rabbit Bus Lines,
Inc. and its driver Tomas delos Reyes to For the death of Erlinda Arcega Meriales.
pay the former jointly and severally the parents and/or heirs:
damages in amounts awarded as follows:
Civil Case No. 1139
For the death of Catalina Pascua, the
parents and/or heirs are awarded a) Indemnity for loss of life —
P12,000.00
Civil Case No. 1136 —
b) Loss of Salary or Earning
a) Indemnity for the loss of life — Capacity — 20,000.00
P12,000.00
c) Actual damages (burial expenses)
b) Loss of Salaries or earning — 500.00
capacity — 14,000.00
d) Moral damages — 15,000.00

24
WEEK 3 - TORTS

e) Exemplary damages — 15,000.00 long ways (sic) before reaching the point of
collision, the Mangune jeepney was
f) Attorney's fees — 3,000.00 "running fast" that his passengers cautioned
driver Manalo to slow down but did not heed
————— the warning: that the right rear wheel was
detached causing the jeepney to run to the
Total — P65,500.00 eastern shoulder of the road then back to
the concrete pavement; that driver Manalo
For the death of Florida Sarmiento Estomo: applied the brakes after which the jeepney
made a U-turn (half-turn) in such a manner
that it inverted its direction making it face
Civil Case No. 1140
South instead of north; that the jeepney
stopped on the western lane of the road on
a) Indemnity for loss of life — the right of way of the oncoming Phil. Rabbit
P12,000.00 Bus where it was bumped by the latter;

b) Loss of Salary or Earning capacity (2) The likewise unrebutted testimony of

— 20,000.00 Police Investigator Tacpal of the San
Manuel (Tarlac) Police who, upon
c) Actual damages (burial expenses) responding to the reported collission, found
— 500.00 the real evidence thereat indicate in his
sketch (Exh. K, Pascua ), the tracks of the
d) Moral damages — 3,000.00 jeepney of defendant Mangune and Carreon
running on the Eastern shoulder (outside
e) Exemplary damages — 3,000.00 the concrete paved road) until it returned to
the concrete road at a sharp angle, crossing
f) Attorney's fees — 3,000.00 the Eastern lane and the (imaginary) center
line and encroaching fully into the western
————— lane where the collision took place as
evidenced by the point of impact;
Total — P41,500.00
(3) The observation of witness Police
With costs against the Philippine Corporal Cacalda also of the San Manuel
Rabbit Bus Lines, Inc. Police that the path of the jeepney they
found on the road and indicated in the
SO ORDERED. sketch (Exh. K-Pascua) was shown by skid
marks which he described as "scratches on
the road caused by the iron of the jeep, after
The motion for reconsideration was denied.
its wheel was removed;"
Hence, the present petition.
(4) His conviction for the crime of Multiple
The issue is who is liable for the death and
Homicide and Multiple Serious Physical
physical injuries suffered by the passengers of
Injuries with Damage to Property thru
the jeepney?
Reckless Imprudence by the Court of First
Instance of Tarlac (Exh. 24-Rabbit) upon
The trial court, in declaring that Manalo was the criminal Information by the Provincial
negligent, considered the following (p. 106, Record Fiscal of Tarlac (Exh. 23-Rabbit), as a result
on Appeal): of the collision, and his commitment to
prison and service of his sentence (Exh. 25-
(1) That the unrebutted testimony of his Rabbit) upon the finality of the decision and
passenger plaintiff Caridad Pascua that a his failure to appeal therefrom; and
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WEEK 3 - TORTS

(5) The application of the doctrine of res- front driver, mechanical trouble, or to avoid
ipsa loquitar (sic) attesting to the an accident. The rear vehicle is given the
circumstance that the collision occured (sic) responsibility of avoiding a collision with the
on the right of way of the Phil. Rabbit Bus. front vehicle for it is the rear vehicle who
has full control of the situation as it is in a
The respondent court had a contrary opinion. position to observe the vehicle in front of it.
Applying primarily (1) the doctrine of last clear
chance, (2) the presumption that drivers who The above discussion would have been correct
bump the rear of another vehicle guilty and the were it not for the undisputed fact that the U-turn
cause of the accident unless contradicted by made by the jeepney was abrupt (Exhibit "K,"
other evidence, and (3) the substantial factor Pascua). The jeepney, which was then traveling on
test. concluded that delos Reyes was negligent. the eastern shoulder, making a straight, skid mark
of approximately 35 meters, crossed the eastern
The misappreciation of the facts and evidence and lane at a sharp angle, making a skid mark of
the misapplication of the laws by the respondent approximately 15 meters from the eastern shoulder
court warrant a reversal of its questioned decision to the point of impact (Exhibit "K" Pascua). Hence,
and resolution. delos Reyes could not have anticipated the sudden
U-turn executed by Manalo. The respondent court
We reiterate that "[t]he principle about "the last did not realize that the presumption was rebutted
clear" chance, would call for application in a by this piece of evidence.
suit between the owners and drivers of the two
colliding vehicles. It does not arise where a With regard to the substantial factor test, it was the
passenger demands responsibility from the opinion of the respondent court that (p. 52, Rollo):
carrier to enforce its contractual obligations.
For it would be inequitable to exempt the . . . It is the rule under the substantial factor
negligent driver of the jeepney and its owners test that if the actor's conduct is a
on the ground that the other driver was likewise substantial factor in bringing about harm to
guilty of negligence." This was Our ruling another, the fact that the actor neither
in Anuran, et al. v. Buño et al., G.R. Nos. L-21353 foresaw nor should have foreseen the
and L-21354, May 20, 1966, 17 SCRA 224. 1 Thus, extent of the harm or the manner in which it
the respondent court erred in applying said occurred does not prevent him from being
doctrine. liable (Restatement, Torts, 2d). Here, We
find defendant bus running at a fast speed
On the presumption that drivers who bump the rear when the accident occurred and did not
of another vehicle guilty and the cause of the even make the slightest effort to avoid the
accident, unless contradicted by other evidence, accident, . . . . The bus driver's conduct is
the respondent court said (p. 49, Rollo): thus a substantial factor in bringing about
harm to the passengers of the jeepney, not
. . . the jeepney had already executed a only because he was driving fast and did
complete turnabout and at the time of not even attempt to avoid the mishap but
impact was already facing the western side also because it was the bus which was the
of the road. Thus the jeepney assumed a physical force which brought about the
new frontal position vis a vis, the bus, and injury and death to the passengers of the
the bus assumed a new role of defensive jeepney.
driving. The spirit behind the presumption of
guilt on one who bumps the rear end of The speed of the bus was calculated by respondent
another vehicle is for the driver following a court as follows (pp. 54-55, Rollo):
vehicle to be at all times prepared of a
pending accident should the driver in front According to the record of the case, the bus
suddenly come to a full stop, or change its departed from Laoag, Ilocos Norte, at 4:00
course either through change of mind of the o'clock A.M. and the accident took place at
26
WEEK 3 - TORTS

approximately around 12:30 P.M., after . . . They (plaintiffs) tried to impress this
travelling roughly for 8 hours and 30 Court that defendant de los Reyes, could
minutes. Deduct from this the actual have taken either of two options: (1) to
stopover time of two Hours (computed from swerve to its right (western shoulder) or (2)
the testimony of the driver that he made to swerve to its left (eastern lane), and thus
three 40-minute stop-overs), We will have steer clear of the Mangune jeepney. This
an actual travelling time of 6 hours and 30 Court does not so believe, considering the
minutes. existing exigencies of space and time.

Under the circumstances, We calculate that As to the first option, Phil. Rabbit's evidence
the Laoag-Tarlac route (365 kms.) driving at is convincing and unrebutted that the
an average of 56 km. per hour would take 6 Western shoulder of the road was narrow
hours and 30 minutes. Therefore, the and had tall grasses which would indicate
average speed of the bus, give and take 10 that it was not passable. Even plaintiffs own
minutes, from the point of impact on the evidence, the pictures (Exhs. P and P-2,
highway with excellent visibility factor would Pascua) are mute confirmation of such fact.
be 80 to 90 kms. per hour, as this is the Indeed, it can be noticed in the picture (Exh.
place where buses would make up for lost P-2, Pascua) after the Rabbit bus came to a
time in traversing busy city streets. full stop, it was tilted to right front side, its
front wheels resting most probably on a
Still, We are not convinced. It cannot be said that canal on a much lower elevation that of the
the bus was travelling at a fast speed when the shoulder or paved road. It too shows that all
accident occurred because the speed of 80 to 90 of the wheels of the Rabbit bus were clear
kilometers per hour, assuming such calculation to of the roadway except the outer left rear
be correct, is yet within the speed limit allowed in wheel. These observation appearing in said
highways. We cannot even fault delos Reyes for picture (Exh P-2, Pascua) clearly shows
not having avoided the collision. As aforestated, coupled with the finding the Rabbit bus
the jeepney left a skid mark of about 45 meters, came to a full stop only five meters from the
measured from the time its right rear wheel was point of impact (see sketch, Exh. K-Pascua)
detached up to the point of collision. Delos clearly show that driver de los Reyes veered
Reyes must have noticed the perilous condition his Rabbit bus to the right attempt to avoid
of the jeepney from the time its right rear wheel hitting the Mangune's jeepney. That it was
was detached or some 90 meters away, not successful in fully clearing the Mangune
considering that the road was straight and jeepney as its (Rabbit's) left front hit said
points 200 meters north and south of the point jeepney (see picture Exh. 10-A-Rabbit)
of collision, visible and unobstructed. Delos must have been due to limitations of space
Reyes admitted that he was running more or and time.
less 50 kilometers per hour at the time of the
accident. Using this speed, delos Reyes Plaintiffs alternatively claim that defendant
covered the distance of 45 meters in 3.24 delos Reyes of the Rabbit bus could also
seconds. If We adopt the speed of 80 kilometers have swerved to its left (eastern lane) to
per hour, delos Reyes would have covered that avoid bumping the Mangune jeepney which
distance in only 2.025 seconds. Verily, he had was then on the western lane. Such a claim
little time to react to the situation. To require is premised on the hypothesis (sic) that the
delos Reyes to avoid the collision is to ask too eastern lane was then empty. This claim
much from him. Aside from the time element would appear to be good copy of it were
involved, there were no options available to based alone on the sketch made after the
him. As the trial court remarked (pp. 107-108, collision. Nonetheless, it loses force it one
Record on Appeal): were to consider the time element involved,
for moments before that, the Mangune
jeepney was crossing that very eastern lane
27
WEEK 3 - TORTS

at a sharp angle. Under such a situation In any event, "[i]n an action for damages
then, for driver delos Reyes to swerve to the against the carrier for his failure to safely
eastern lane, he would run the greater risk carry his passenger to his destination, an
of running smack in the Mangune jeepney accident caused either by defects in the
either head on or broadside. automobile or through the negligence of its
driver, is not a caso fortuito which would
After a minute scrutiny of the factual matters and avoid the carriers liability for damages (Son
duly proven evidence, We find that the proximate v. Cebu Autobus Company, 94 Phil. 892
cause of the accident was the negligence of citing Lasam, et al. v. Smith, Jr., 45 Phil.
Manalo and spouses Mangune and Carreon. 657; Necesito, etc. v. Paras, et al., 104 Phil.
They all failed to exercise the precautions that 75).
are needed precisely  pro hac vice.
The trial court was therefore right in finding that
In culpa contractual, the moment a passenger dies Manalo and spouses Mangune and Carreon were
or is injured, the carrier is presumed to have been negligent. However, its ruling that spouses
at fault or to have acted negligently, and this Mangune and Carreon are jointly and severally
disputable presumption may only be overcome by liable with Manalo is erroneous The driver cannot
evidence that he had observed extra-ordinary be held jointly and severally liable with the carrier in
diligence as prescribed in Articles 1733, 1755 and case of breach of the contract of carriage. The
1756 of the New Civil Code 2 or that the death or rationale behind this is readily discernible. Firstly,
injury of the passenger was due to a fortuitous the contract of carriage is between the carrier and
event 3 (Lasam v. Smith, Jr., 45 Phil. 657). the passenger, and in the event of contractual
liability, the carrier is exclusively responsible
The negligence of Manalo was proven during the therefore to the passenger, even if such breach be
trial by the unrebutted testimonies of Caridad due to the negligence of his driver (see Viluan v.
Pascua, Police Investigator Tacpal, Police Corporal The Court of Appeals, et al., G.R. Nos. L-21477-81,
Cacalda, his (Manalo's) conviction for the crime of April 29, 1966, 16 SCRA 742). In other words, the
Multiple Homicide and Multiple Serious Injuries with carrier can neither shift his liability on the contract
Damage to Property thru Reckless Imprudence, to his driver nor share it with him, for his driver's
and the application of the doctrine ofres ipsa negligence is his. 4 Secondly, if We make the driver
loquitur supra. The negligence of spouses jointly and severally liable with the carrier, that
Mangune and Carreon was likewise proven during would make the carrier's liability personal instead of
the trial (p. 110, Record on Appeal): merely vicarious and consequently, entitled to
recover only the share which corresponds to the
To escape liability, defendants Mangune driver, 5 contradictory to the explicit provision of
and Carreon offered to show thru their Article 2181 of the New Civil Code. 6
witness Natalio Navarro, an alleged
mechanic, that he periodically checks We affirm the amount of damages adjudged by the
and maintains the jeepney of said trial court, except with respect to the indemnity for
defendants, the last on Dec. 23, the day loss of life. Under Article 1764 in relation to Article
before the collision, which included the 2206 of the New Civil Code, the amount of
tightening of the bolts. This damages for the death of a passenger is at least
notwithstanding the right rear wheel of three thousand pesos (P3,000.00). The prevailing
the vehicle was detached while in transit. jurisprudence has increased the amount of
As to the cause thereof no evidence was P3,000.00 to P30,000.00 (see Heirs of Amparo
offered. Said defendant did not even delos Santos, et al. v. Honorable Court of Appeals,
attempt to explain, much less establish, et al., G.R. No. 51165, June 21, 1990 citing De
it to be one caused by a   caso Lima v. Laguna Tayabas Co., G.R. Nos. L-35697-
fortuito. . . . 99, April 15, 1988, 160 SCRA 70).

28
WEEK 3 - TORTS

ACCORDINGLY, the petition is hereby GRANTED.

The decision of the Intermediate Appellate Court
dated July 29, 1983 and its resolution dated
November 28, 1983 are SET ASIDE. The decision
of the Court of First Instance dated December 27,
1978 is REINSTATED MODIFICATION that only
Isidro Mangune, Guillerma Carreon and Filriters
Guaranty Assurance Corporation, Inc. are liable to
the victims or their heirs and that the amount of
indemnity for loss of life is increased to thirty
thousand pesos (P30,000.00).

SO

29
WEEK 3 - TORTS

This petition for review1 under Rule 45 of the

G.R. No. 125483      February 1, 2001 Revised Rules of Court seeks to annul and set
aside the decision2dated January 10, 1996 of the
LUDO AND LUYM CORPORATION, petitioner,  Court of Appeals which reversed and set aside the
vs. decision of the Regional Trial Court of Cebu City,
COURT OF APPEALS, GABISAN SHIPPING Branch IX, and the resolution3 dated June 11, 1996,
LINES, INC. and/or ANSELMO denying petitioner's motion for
OLASIMAN, respondents. reconsideration.1âwphi1.nêt

SYLABUS: Petitioner Ludo & Luym Corporation is a domestic

corporation engaged in copra processing with plant
Remedial Law; Appeals; An appellate court can and business offices in Cebu City. Private
Respondent Gabisan Shipping Lines was the
consider an unassigned error on which depends the registered owner and operator of the motor
determination of the question in the properly vessel MV Miguela, while the other private
assigned error.—We note that Naval’s respondent, Anselmo Olasiman, was its captain.
incompetence was not one of the assigned errors
in private respondents’ brief. However, private Petitioner owns and operates a private wharf used
respondents raised it in connection with the issue by vessels for loading and unloading of copra and
of their negligence, which appeared in the second other processed products. Among its wharf's
facilities are fender pile clusters for docking and
assigned error. In reproducing the portion of the mooring.
TSN consisting of Naval’s cross-examination,
private respondents’ counsel was indirectly On May 21, 1990, at around 1:30 P.M., while MV
attacking Naval’s competence and invoking it vis-a- Miguela was docking at petitioner's wharf, it
vis the trial court’s finding, based on Naval’s rammed and destroyed a fender pile cluster.
testimony, that MV Miguela was sailing at a speed Petitioner demanded damages from private
unusual for a docking vessel. The CA did not err in respondents. The latter refused. Hence, petitioner
filed a complaint for damages before the Regional
addressing the matter. An appellate court can Trial Court of Cebu.
consider an unassigned error on which depends the
determination of the question in the properly Petitioner's evidence during trial showed that on
assigned error. The issue of negligence of MV May 21, 1990, at 1:30 P.M., MV Miguela came to
Miguela’s officers and crew depends significantly dock at petitioner's wharf. Ireneo Naval,
on the determination of whether Naval is petitioner's employee, guided the vessel to its
competent to testify on the maneuvering of a docking place. After the guide (small rope) was
thrown from the vessel and while the petitioner's
docking vessel. security guard was pulling the big rope to be tied to
the bolar, MV Miguela did not slow down. The crew
Same; Same; There are exceptions to the rule that did not release the vessel's anchor. Naval shouted
the Court is limited to questions of law in a petition "Reverse" to the vessel's crew, but it was too
for review.—While the rule is that this Court is late when the latter responded, for the vessel
limited only to questions of law in a petition for already rammed the pile cluster. The impact
disinclined the pile cluster and deformed the cable
review, there are exceptions, among which are wires wound around it. Naval immediately informed
when the factual findings of the Court of Appeals the vessel's captain and its chiefmate of the
and the trial court conflict, and when the appellate incident, and instructed the guard-on-duty, Alfredo
court based its conclusion entirely on speculations, Espina, to make a spot report. The incident was
surmises, or conjectures. reported to Atty. Du, petitioner's vice-president for
legal and corporate affairs. Atty. Du in turn sent
QUISUMBING, J.: formal demand letters to private respondents.
30
WEEK 3 - TORTS

Marine surveyor Carlos Degamo inspected the WHEREFORE, premises considered, this
damage on the pile cluster and found that one post court hereby renders judgment in favor of
was uprooted while two others were loosened and the plaintiff, ordering the defendants, jointly
that the pile cluster was leaning shoreward. and severally, to pay the plaintiff the
Degamo hired skin diver Marvin Alferez, who found following:
that one post was broken at about 7 inches from
the seabed and two other posts rose and cracked 1) Php 70,000.00 actual damages, plus
at the bottom. Based on these findings, Degamo interest at the rate of 12% per annum from
concluded that the two raised posts were also the time the decision is received by
broken under the seabed and estimated the cost of defendants until fully paid;
repair and replacement at P95,000.00.
2) Php 15,000.00 exemplary damages;
Private respondents denied the incident and the
damage. Their witnesses claimed that the damage, 3) Php 15,000.00 attorney's fees;
if any, must have occurred prior to their arrival and
caused by another vessel or by ordinary wear and 4) Php 10,000.00 litigation expenses.
tear. They averred that MV Miguela started to slow
down at 100 meters and the crew stopped the COSTS AGAINST THE DEFENDANTS.
engine at 50 meters from the pier; that Capt.
Anselmo Olasiman did not order the anchor's
SO ORDERED.4
release and chief mate Manuel Gabisan did not
hear Naval shout "Reverse". Respondents claimed
that Naval had no business in the vessels' In finding in favor of petitioner, the trial court found
maneuvering. When Naval informed the vessel's that it was able to prove by preponderance of
officers of the incident, Olasiman sent their bodega evidence that MV Miguela rammed and damaged
man, Ronilo Lazara, to dive on the same afternoon the pile cluster; that petitioner's witnesses, Naval
to check on the alleged damage. Lazara told and Espina, actually saw the incident; that
Olasiman that there was no damage. However, respondents failed to refute the testimony of marine
during direct examination, Lazara testified that he surveyor Degamo and skin diver Alferez on the
found a crack on the side of the pile cluster, one damages; that the officers and crew of MV
post detached from the seabed at a distance of Miguela were negligent; and that respondents are
about 7 inches, and seashells and seaweeds solidarily liable for the damages.
directly underneath the uprooted post. There were
scattered pieces of copra at the place where MV Upon private respondent's appeal, the Court of
Miguela docked, which indicated the prior docking Appeals reversed the trial court on January 10,
by other vessels. After MV Miguela left, another 1996, in its decision that reads:
vessel docked in the same area. Petitioner did not
prevent MV Miguela from departing. When WHEREFORE, in view of the foregoing,
chiefmate Gabisan went to Atty. Du, the latter told judgment is rendered REVERSING and
him not to mind the incident. SETTING aside the decision of the Court a
quo, hereby entering a new one
On rebuttal, petitioner presented Atty. Du who DISMISSING the Complaint for lack of
testified that Gabisan never went to his office after merit.
receiving the letter-complaint; that petitioner never
received any reply to its demand letters; and that No pronouncement as to costs.
the first time Atty. Du saw Gabisan was during the
pre-trial. SO ORDERED.5

On May 14, 1993, the trial court disposed the case The CA found that petitioner's eyewitness Naval
in favor of petitioner, thus: was incompetent to testify on the negligence of the
crew and officers of MV Miguela; that there were
31
WEEK 3 - TORTS

other vessels that used the wharf for berthing the general statements and reproductions of excerpts
petitioner's evidence did not positively prove that it of the transcript of stenographic notes (TSN) which
was MV Miguela that rammed the pile cluster; that could not pass for a valid assignment of errors.
the photographs of the pile cluster taken after the
incident showed no visible damages; that, as We note that Naval's incompetence was not one of
shown by private respondents' witness, there were the assigned errors in private respondents'
seashells and seaweeds directly under the brief.7 However, private respondents raised it in
uprooted post, which indicated that the breaking connection with the issue of their negligence, which
happened a long time ago. appeared in the second assigned error. In
reproducing the portion of the TSN consisting of
The CA denied the motion for reconsideration. Naval's cross examination, private respondents'
Hence, this petition for review where petitioner counsel was indirectly attacking Naval's
assigns the following errors: competence and invoking it vis a vis the trial court's
finding, based on Naval's testimony, that MV
A. THE COURT OF APPEALS ACTED IN Miguela was sailing at a speed unusual for a
EXCESS OF ITS JURISDICTION WHEN IT docking vessel.8 The CA did not err in addressing
WENT BEYOND THE ISSUES RAISED IN the matter. An appellate court can consider an
THE ASSIGNMENT OF ERRORS OF unassigned error on which depends the
PRIVATE RESPONDENT. determination of the question in the properly
assigned error.9 The issue of negligence of MV
B. THE DECISION OF THE COURT OF Miguela's officers and crew depends significantly
APPEALS IS GROUNDED ON on the determination of whether Naval is competent
SPECULATION, SURMISES AND to testify on the maneuvering of a docking vessel.
CONJECTURES AND HAS DEPARTED
FROM THE RULES ON EVIDENCE. The second issue is whether or not we can review
questions of fact. Petitioner, in its second and third
C. THE COURT OF APPEALS assigned errors, claims that the appellate court
MISAPPREHENDED THE FACTS AND ITS relied on speculations and conjectures when it
FINDINGS IS TOTALLY NOT IN ACCORD ruled that MV Miguela could not have rammed the
WITH THE EVIDENCE ON RECORD. pile cluster because of the presence of other
vessels; that petitioner's evidence, corroborated by
D. THE COURT OF APPEALS DEPARTED those of private respondents, is positive and
FROM THE RULE OF RES IPSA sufficient to prove respondents' liability; that
LOQUITUR.6 evidence on record showed the negligence and
recklessness of MV Miguela's officers and crew;
The issues for resolution can be reduced into three: and that the crew were grossly incompetent and
incapable to man the vessel.
1. Did the CA go beyond the issues raised?
Private respondents claim that the above are
conclusions of fact which this Court may not review.
2. Can this Court review factual questions in
this case?
While the rule is that this Court is limited only to
questions of law in a petition for review, there are
3. Is the doctrine of res ipsa
exceptions, among which are when the factual
loquitur applicable to this case?
findings of the Court of Appeals and the trial court
conflict, and when the appellate court based its
On the first issue, petitioner argues that private conclusion entirely on speculations, surmises, or
respondents did not assign as an error eyewitness conjectures.100
Ireneo Naval's incompetence to testify on the
negligence of MV Miguela's officers and crew.
Our review of the records constrains us to conclude
Private respondent's brief contained nothing but
that indeed MV Miguela rammed and damaged
32
WEEK 3 - TORTS

petitioner's fender pile cluster. Naval and Espina Appeals erred when it reversed the trial court for
witnessed the incident, saw the impact and heard the latter's heavy reliance on Naval's testimony.
cracking sounds thereafter. The trial court found The appellate court overlooked the fact that aside
them credible. We respect this observation of the from Naval's testimony, the trial court also relied on
trial court, for in the appreciation of testimonial the principle of res ipsa loquitur to establish private
evidence and attribution of values to the declaration respondents' negligence.
of witnesses, it is the trial judge who had the
chance to observe the witnesses and was in a The doctrine of res ipsa loquitur was explained
position to determine if the witnesses are telling the in Batiquin vs. Court of Appeals, 258 SCRA 334
truth or not.11Further, private respondents' (1996), thus:
witnesses, Olasiman and Gabisan, acknowledged
that Naval was at the pier waving a handkerchief to Where the thing which causes injury is
direct them to their berthing place.12 shown to be under the management of the
defendant, and the accident is such as in
Private respondents' claim that they could not have the ordinary course of things does not
rammed and damaged the pile cluster because happen if those who have the management
other vessels used the same area for berthing is a use proper care, it affords reasonable
mere speculation unworthy of credence. evidence, in the absence of an explanation
by the defendant, that the accident arose
Petitioner's witnesses, marine surveyor Degamo from want of care.
and diver Alferez, confirmed the damage. Degamo
had eighteen years of experience as marine The doctrine recognizes that parties may
surveyor and belonged to an independent survey establish prima facie negligence without direct
company. Alferez was hired and directly supervised proof and allows the principle to substitute for
by Degamo for the task.13 The latter testified during specific proof of negligence. This is invoked when
trial that he examined the pile cluster at the portion under the circumstances, direct evidence is absent
above the water line by going near it and found that and not readily available.19
one cluster pile was moving, two were loose, and
the whole pile cluster was leaning shoreward and In our view, all the requisites for recourse to this
misalligned.14 Alferez, under oath, testified that he doctrine exist. First, MV Miguela was under the
dived two or three times and saw one broken post exclusive control of its officers and crew. Petitioner
and two slightly uprooted ones with a crack on did not have direct evidence on what transpired
each.15 within as the officers and crew maneuvered the
vessel to its berthing place. We note the Court of
On the other hand, private respondents' evidence Appeals' finding that Naval and Espina were not
on this matter was contradictory. As testified by knowledgeable on the vessel's maneuverings, and
Olasiman, when he asked Lazara on the result of could not testify on the negligence of the officers
his diving, the latter said that there was no and crew. Second, aside from the testimony
damage.16 However, when Lazara testified in court, that MV Miguela rammed the cluster pile, private
he said he found a crack on the side of the pile respondent did not show persuasively other
cluster, with one pile no longer touching the seabed possible causes of the damage.
and directly underneath it were seashells and
seaweeds. Further, he said that he informed the Applying now the above, there exists a presumption
captain about this.17 We find Lazara's testimony as of negligence against private respondents which we
an afterthought, lacking credibility. In addition, opine the latter failed to overcome. Additionally,
Leonilo Lazara, was a mere bodegero of MV petitioner presented tangible proof that
Miguela. He could not possibly be a competent demonstrated private respondents' negligence. As
witness on marine surveys.18 testified by Capt. Olasiman, from command of "slow
ahead" to "stop engine", the vessel will still travel
Finally, is the doctrine of res ipsa loquitur applicable 100 meters before it finally stops. However, he
to this case? Petitioner argues that the Court of ordered "stop engine" when the vessel was only 50
33
WEEK 3 - TORTS

meters from the pier. Further, he testified that

before the vessel is put to slow astern, the engine
has to be restarted. However, Olasiman can not
estimate how long it takes before the engine goes
to slow astern after the engine is restarted. From
these declarations, the conclusion is that it was
already too late when the captain ordered reverse.
By then, the vessel was only 4 meters from the
pier,20 and thus rammed it.

Respondent company's negligence consists in

allowing incompetent crew to man its vessel. As
shown also by petitioner, both Captain Olasiman
and Chief Mate Gabisan did not have a formal
training in marine navigation. The former was a
mere elementary graduate21 while the latter is a
high school graduate. Their experience in
navigation22 was only as a watchman and a
quartermaster, respectively.1âwphi1.nêt

WHEREFORE, the petition is GRANTED. The

decision and resolution of the Court of Appeals
are ANNULLED AND SET ASIDE, and the
decision of the Regional Trial Court of Cebu City,
Branch IX, is hereby REINSTATED.

Costs against private respondents.

SO ORDERED.

34
WEEK 3 - TORTS

of ordinary care on the part of the person injured

which, concurring with the defendant’s negligence,
G.R. No. 83491 August 27, 1990 is the proximate cause of the injury.” It has been
held that “to hold a person as having contributed
MA-AO SUGAR CENTRAL CO., INC. and to his injuries, it must be shown that he performed
GUILLERMO ARANETA, petitioners,
vs.
an act that brought about his injuries in disregard
HON. COURT OF APPEALS and HERMINIA of warnings or signs of an impending danger to
FAMOSO, respondents. health and body.” There is no showing that the
caboose where Famoso was riding was a dangerous
SYLLABUS: place and that he recklessly dared to stay there
Civil Law; Damages; Negligence; Petitioner should despite warnings or signs of impending
have taken more prudent steps to prevent such Same; Same; Same; Workmen’s Compensation Act;
accidents instead of waiting until a life was finally Payment of SSS benefits to the employee would
lost; Case at bar.—There is no question that the not wipe out or extinguish the employer’s liability
maintenance of the rails, for the purpose inter alia for the injury or illness contracted by his employee.
of preventing derailments, was the responsibility of —As observed by Justice J.B.L. Reyes in the case of
the petitioner, and that this responsibility was not Valencia v. Manila Yacht Club, which is still
discharged. According to Jose Treyes, its own controlling: x x x By their nature and purpose, the
witness, who was in charge of the control and sickness or disability benefits to which a member of
supervision of its train operations, cases of the System may be entitled under the Social
derailment in the milling district were frequent and Security law (Rep. Act No. 1161, as amended by
there were even times when such derailments Rep. Acts Nos. 1792 and 2658) are not the same as
were reported every hour. The petitioner should the compensation that may be claimed against the
therefore have taken more prudent steps to employer under the Workmen’s Compensation Act
prevent such accidents instead of waiting until a or the Civil Code, so that payment to the member
life was finally lost because of its negligence. employee of social security benefits would not
wipe out or extinguish the employer’s liability for
Same; Same; Doctrine of the res ipsa loquitur.—At the injury or illness contracted by his employee in
any rate, the absence of the fish plates—whatever the course of or during the employment. It must be
the cause or reason—is by itself—alone proof of realized that, under the Workmen’s Compensation
the negligence of the petitioner. Res ipsa loquitur. Act (or the Civil Code, in a proper case), the
The doctrine was described recently in Layugan v. employer is required to compensate the employee
Intermediate Appellate Court, thus: Where the for the sickness or injury arising in the course of the
thing which causes injury is shown to be under the employment because the industry is supposed to
management of the defendant, and the accident is be responsible therefore; whereas, under the
such as in the ordinary course of things does not Social Security Act, payment is being made because
happen if those who have the management use the hazard specifically covered by the membership,
proper care, it affords reasonable evidence, in the and for which the employee had put up his own
absence of an explanation by the defendant, that money, had taken place.
the accident arose from want of care.

Same; Same; Same; Contributory negligence, CRUZ, J.:

defined.—Contributory negligence has been
defined as “the act or omission amounting to want To say the least, the Court views with regret the
adamant refusal of petitioner Ma-ao Sugar Central
35
WEEK 3 - TORTS

to recompense the private respondent for the death P73,000.00 — Total Damages
of Julio Famoso, their main source of support, who
was killed in line of duty while in its employ. It is not Less: P18,250.00 — 25% for the
only a matter of law but also of compassion on deceased's contributory
which we are called upon to rule today. We shall negligence
state at the outset that on both counts the petition
must fail. Less: P41,367.60 — pension plaintiff
and her minor children would
On March 22, 1980, Famoso was riding with a co-
employee in the caboose or "carbonera" of —————
Plymouth No. 12, a cargo train of the petitioner, be receiving for five (5) years from
when the locomotive was suddenly derailed. He the SSS
and his companion jumped off to escape injury, but
the train fell on its side, caught his legs by its Pl3,382.40
wheels and pinned him down. He was declared
dead on the spot. 1 Plus: P3,000.00 — Attorney's fees
and cost of this suit
The claims for death and other benefits having
been denied by the petitioner, the herein private —————
respondent filed suit in the Regional Trial Court of
Bago City. Judge Marietta Hobilla-Alinio ruled in
Pl6,382.40 — Total amount payable
her favor but deducted from the total damages
to the plaintiff.
awarded 25% thereof for the decedent's
contributory negligence and the total pension of
P41,367.60 private respondent and her children —————
would be receiving from the SSS for the next five
years. The dispositive portion of the decision read: SO ORDERED.

WHEREFORE, in view of the The widow appealed, claiming that the deductions
foregoing facts and circumstances were illegal. So did the petitioner, but on the ground
present in this case, the Court order, that it was not negligent and therefore not liable at
as it does hereby order the all.
defendant Ma-ao Sugar Central thru
its Manager Mr. Guillermo Y. In its own decision, the Court of
Araneta to pay plaintiff the following Appeals 2 sustained the rulings of the trial court
amount: except as to the contributory negligence of the
deceased and disallowed the deductions protested
P30,000.00 — for the death of by the private respondent. Thus, the respondent
plaintiff's husband, the late court declared:
Julio Famoso
WHEREFORE, the decision
P30,000.00 — for actual, exemplary appealed from is MODIFIED by
and moral damages ordering the defendant-appellant to
pay the plaintiff-appellee the
P10,000.00 — loss of earnings for following amounts:
twenty (20) years
P30,000.00, for the death of Julio
P3,000.00 — funeral expenses Famoso

————— P30,000.00, for actual, exemplary

and moral damages
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WEEK 3 - TORTS

P10,000.00, for loss of earnings for required to report any defect in the condition of the
twenty (20) years railways and to fill out prescribed forms for the
purpose. For what is important is that the petitioner
P3,000.00, for funeral expenses should act on these reports and not merely receive
and file them. The fact that it is not easy to detect if
P3,000.00, for attorney's fees the fish plates are missing is no excuse either.
Indeed, it should stress all the more the need for
———— the responsible employees of the petitioner to
make periodic checks and actually go down to
P76,000.00 Total Amount the railroad tracks and see if the fish plates
were in place.
========
It is argued that the locomotive that was derailed
was on its way back and that it had passed the
In this petition, the respondent court is faulted for
same rails earlier without accident. The suggestion
finding the petitioner guilty of negligence
is that the rails were properly aligned then, but that
notwithstanding its defense of due diligence under
does not necessarily mean they were still aligned
Article 2176 of the Civil Code and for disallowing
afterwards. It is possible that the fish plates
the deductions made by the trial court.
were loosened and detached during its first trip
and the rails were as a result already mis-
Investigation of the accident revealed that the aligned during the return trip. But the Court feels
derailment of the locomotive was caused by that even this was unlikely, for, as earlier noted, the
protruding rails which had come loose because fish plates were supposed to have been bolted to
they were not connected and fixed in place by the rails and could be removed only with special
fish plates. Fish plates are described as strips of tools. The fact that the fish plates were not
iron 8" to 12" long and 3 1/2" thick which are found later at the scene of the mishap may
attached to the rails by 4 bolts, two on each side, to show they were never there at all to begin with
keep the rails aligned. Although they could be or had been removed long before.
removed only with special equipment, the fish
plates that should have kept the rails aligned
At any rate, the absence of the fish plates –
could not be found at the scene of the accident.
whatever the cause or reason – is by itself
alone proof of the negligence of the
There is no question that the maintenance of the petitioner. Res ipsa loquitur. The doctrine was
rails, for the purpose inter alia of preventing described recently in Layugan v. Intermediate
derailments, was the responsibility of the Appellate Court, 4 thus:
petitioner, and that this responsibility was not
discharged. According to Jose Treyes, its own
Where the thing which causes injury
witness, who was in charge of the control and
is shown to be under the
supervision of its train operations, cases of
management of the defendant, and
derailment in the milling district were frequent
the accident is such as in the
and there were even times when such
ordinary course of things does not
derailments were reported every hour. 3 The
happen if those who have the
petitioner should therefore have taken more
management use proper care, it
prudent steps to prevent such accidents
affords reasonable evidence, in the
instead of waiting until a life was finally lost
absence of an explanation by the
because of its negligence.
defendant, that the accident arose
from want of care.
The argument that no one had been hurt before
because of such derailments is of course not
The petitioner also disclaims liability on the ground
acceptable. And neither are we impressed by the
of Article 2176 of the Civil Code, contending it has
claim that the brakemen and the conductors were
exercised due diligence in the selection and
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WEEK 3 - TORTS

supervision of its employees. The Court cannot the Employees Compensation Commission, whose
agree. The record shows it was in fact lax in funds are administered by the SSS, shall be
requiring them to exercise the necessary exclusive of all other amounts that may otherwise
vigilance in maintaining the rails in good be claimed under the Civil Code and other pertinent
condition to prevent the derailments that laws.
sometimes happened "every hour." Obviously,
merely ordering the brakemen and conductors to fill The amount to be paid by the SSS represents the
out prescribed forms reporting derailments-which usual pension received by the heirs of a deceased
reports have not been acted upon as shown by the employee who was a member of the SSS at the
hourly derailments is-not the kind of supervision time of his death and had regularly contributed his
envisioned by the Civil Code. premiums as required by the System. The pension
is the benefit derivable from such contributions. It
We also do not see how the decedent can be held does not represent the death benefits payable
guilty of contributory negligence from the mere fact under the Workmen's Compensation Act to an
that he was not at his assigned station when the employee who dies as a result of a work-connected
train was derailed. That might have been a violation injury. Indeed, the certification from the
of company rules but could not have directly SSS 8 submitted by the petitioner is simply to the
contributed to his injury, as the petitioner suggests. effect that:
It is pure speculation to suppose that he would
not have been injured if he had stayed in the TO WHOM IT MAY CONCERN:
front car rather than at the back and that he had
been killed because he chose to ride in the This is to certify that Mrs. Herminia
caboose. Vda. de Famoso is a recipient of a
monthly pension from the Social
Contributory negligence has been defined as Security System arising from the
"the act or omission amounting to want of death of her late husband, Julio
ordinary care on the part of the person injured Famoso, an SSS member with SSS
which, concurring with the defendant's No. 07-018173-1.
negligence, is the proximate cause of the
injury." 5 It has been held that "to hold a person This certification is issued to Ma-ao
as having contributed to his injuries, it must be Sugar Central for whatever legal
shown that he performed an act that brought purpose it may serve best.
about his injuries in disregard of warnings or
signs of an impending danger to health and Issued this 8th day of April 1983 in
body." 6 There is no showing that the caboose Bacolod City,
where Famoso was riding was a dangerous Philippines.GODOFREDO S. SISON
place and that he recklessly dared to stay there Regional Manager By: (SGD.)
despite warnings or signs of impending danger. COSME Q. BERMEO, JR. Chief,
Benefits Branch
The last point raised by the petitioner is easily
resolved. Citing the case of Floresca v. Philex It does not indicate that the pension is to be taken
Mining Corporation, 7 it argues that the respondent from the funds of the ECC. The certification would
court erred in disauthorizing the deduction from the have said so if the pension represented the death
total damages awarded the private respondent of benefits accruing to the heirs under the Workmen's
the amount of P41,367.60, representing the Compensation Act.
pension to be received by the private respondent
from the Social Security System for a period of five This conclusion is supported by the express
years. The argument is that such deduction was provision of Art. 173 as amended, which
quite proper because of Art. 173 of the Labor Code, categorically states that:
as amended. This article provides that any amount
received by the heirs of a deceased employee from
38
WEEK 3 - TORTS

Art. 173. Exclusiveness of liability. — that, under the Workmen's

Unless otherwise provided, the Compensation Act (or the Civil
liability of the State Insurance Fund Code, in a proper case), the
under this Title shall be exclusive employer is required to compensate
and in place of all other liabilities of the employee for the sickness or
the employer to the employee, his injury arising in the course of the
dependents or anyone otherwise employment because the industry is
entitled to receive damages on supposed to be responsible
behalf of the employee or his therefore; whereas, under the Social
dependents. The payment of Security Act, payment is being made
compensation under this Title shall because the hazard specifically
not bar the recovery of benefits as covered by the membership, and for
provided for in Section 699 of the which the employee had put up his
Revised Administrative own money, had taken place. As this
Code, Republic Act Numbered Court had said:
Eleven hundred sixty-one, as
amended, Commonwealth Act . . . To deny payment
Numbered One hundred eighty-six, of social security
as amended, Republic Act benefits because the
Numbered Six hundred ten, as death or injury or
amended, Republic Act Numbered confinement is
Forty-eight hundred sixty-four, as compensable under
amended and other laws whose the Workmen's
benefits are administered by the Compensation Act
System or by other agencies of the would be to deprive
government. (Emphasis supplied). the employees
members of the
Rep. Act No. 1161, as amended, is the Social System of the
Security Law. statutory benefits
bought and paid for
As observed by Justice J.B.L. Reyes in the case by them, since they
of Valencia v. Manila Yacht Club, 9 which is still contributed their
controlling: money to the general
common fund out of
. . . By their nature and purpose, the which benefits are
sickness or disability benefits to paid. In other words,
which a member of the System may the benefits provided
be entitled under the Social Security for in the Workmen's
law (Rep. Act No. 1161, as amended Compensation Act
by Rep. Acts Nos. 1792 and 2658) accrues to the
are not the same as the employees concerned
compensation that may be claimed due to the hazards
against the employer under the involved in their
Workmen's Compensation Act or the employment and is
Civil Code, so that payment to the made a burden on the
member employee of social security employment itself
benefits would not wipe out or However, social
extinguish the employer's liability for security benefits are
the injury or illness contracted by his paid to the System's
employee in the course of or during members, by reason
the employment. It must be realized of their membership

39
WEEK 3 - TORTS

therein for which they not paid as a burden on the industry,

contribute their but are paid to the members of the
money to a general System as a matter of right,
common fund . . . . whenever the hazards provided for
in the law occurs. To deny payment
It may be added that of social security benefits because
whereas social the death or injury or confinement is
security benefits are compensable under the Workmen's
intended to provide Compensation Act would be to
insurance or deprive the employees-members of
protection against the the System of the statutory benefits
hazards or risks for bought and paid for by them, since
which they are they contribute their money to the
established, e.g., general common fund out of which
disability, sickness, benefits are paid. In other words, the
old age or death, benefits provided for in the
irrespective of Workmen's Compensation Act
whether they arose accrues to the employees
from or in the course concerned, due to the hazards
of the employment or involved in their employment and is
not, the compensation made a burden on the employment
receivable under the itself However, social security
Workmen's benefits are paid to the System's
Compensation law is members, by reason of their
in the nature of membership therein for which they
indemnity for the contributed their money to a general
injury or damage common fund.
suffered by the
employee or his Famoso's widow and nine minor children have
dependents on since his death sought to recover the just
account of the recompense they need for their support. Instead of
employment. (Rural lending a sympathetic hand, the petitioner has
Transit Employees sought to frustrate their efforts and has even come
Asso. vs. Bachrach to this Court to seek our assistance in defeating
Trans. Co., 21 SCRA their claim. That relief-and we are happy to say this
1263 [19671]) must be withheld.

And according to Justice Jesus G. Barrera WHEREFORE, the appealed decision is

in Benguet Consolidated, Inc. v. Social Security AFFIRMED in toto. The petition is DENIED, with
System:" 10 costs against the petitioner.

The philosophy underlying the SO ORDERED.

Workmen's Compensation Act is to
make the payment of the benefits
provided for therein as a
responsibility of the industry, on the
ground that it is industry which
should bear the resulting death or
injury to employees engaged in the
said industry. On the other hand,
social security sickness benefits are
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WEEK 3 - TORTS

41