THIRD DIVISION

[G.R. No. 68102. July 16, 1992.]

GEORGE MCKEE and ARACELI KOH MCKEE, Petitioners, v. INTERMEDIATE APPELLATE

COURT, JAIME TAYAG and ROSALINDA MANALO, Respondents.

[G.R. No. 68103. July 16, 1992]

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, Petitioners, v. INTERMEDIATE APPELLATE
COURT, JAIME TAYAG and ROSALINDA MANALO, Respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; CONSOLIDATION OF ACTIONS; OBJECTIVES. — Section 1,

Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial
court, or in short, attain justice with the least expense to the parties litigants, would have
easily sustained a consolidation, thereby preventing the unseeming, if not ludicrous, spectacle
of two (2) judges appreciating, according to their respective orientation, perception and
perhaps even prejudice, the same facts differently, and thereafter rendering conflicting
decisions.

2. ID.; CRIMINAL PROCEDURE; PROSECUTION OF CIVIL ACTION; CONSOLIDATION OF

INDEPENDENT CIVIL ACTION WITH CRIMINAL ACTION; REQUISITE. — In the recent case of
Cojuangco v. Court of Appeals, this Court held that the present provisions of Rule 111 of the
Revised Rules of Court allow a consolidation of an independent civil action for the recovery of
civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal
action subject, however, to the condition that no final judgment has been rendered in that
criminal case.

3. ID.; ID.; APPEALS; SUPREME COURT NOT A TRIER OF FACTS; ONLY QUESTIONS OF LAW MAY BE
RAISED IN APPEAL BY CERTIORARI UNDER RULE 45; FACTUAL FINDINGS OF LOWER COURTS
GENERALLY BINDING ON SUPREME COURT; EXCEPTIONS; CASE AT BAR. — The principle is well-
established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under Rule
45 of the Revised Rules of Court, only questions of law may be raised. The resolution of factual
issues is the function of the lower courts whose findings on these matters are received with
respect and are, as a rule, binding on this Court. The foregoing rule, however, is not without
exceptions. Findings of facts of the trial courts and the Court of Appeals may be set aside when
such findings are not supported by the evidence or when the trial court failed to consider the
material facts which would have led to a conclusion different from what was stated in its
judgment. The same is true where the appellate court’s conclusions are grounded entirely on
conjectures, speculations and surmises or where the conclusions of the lower courts are based
on a misapprehension of facts. It is at once obvious to this Court that the instant case qualifies
as one of the aforementioned exceptions as the findings and conclusions of the trial court and
the respondent Court in its challenged resolution are not supported by the evidence, are based
on a misapprehension of facts and the inferences made therefrom are manifestly mistaken. The
respondent Court’s decision of 29 November 1983 makes the correct findings of fact.

4. ID.; EVIDENCE; PRESUMPTION THAT OFFICIAL DUTY HAD BEEN REGULARLY PERFORMED; CASE
AT BAR. — We cannot give credence to private respondents’ claim that there was an error in the
translation by the investigating officer of the truck driver’s response in Pampango as to
whether the speed cited was in kilometers per hour or miles per hour. The law presumes that
official duty has been regularly performed; unless there is proof to the contrary, this
presumption holds. In the instant case, private respondents’ claim is based on mere conjecture.

5. CIVIL LAW; QUASI-DELICTS; INDEPENDENT CIVIL ACTIONS; RESPONSIBILITY FOR FAULT OR

NEGLIGENCE IN QUASI-DELICT SEPARATE AND DISTINCT FROM CIVIL LIABILITY ARISING FROM
NEGLIGENCE UNDER THE PENAL CODE; ACQUITTAL OR CONVICTION IN CRIMINAL ACTION
ENTIRELY IRRELEVANT TO INDEPENDENT CIVIL ACTION; CASE AT BAR. — As We held in Dionisio v.
Alvendia, the responsibility arising from fault or negligence in a quasi-delict is entirely separate
and distinct from the civil liability arising from negligence under the Penal Code. And, as more
concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent
civil actions under the new Civil Code, the result of the criminal case, whether acquittal or
conviction, would be entirely irrelevant to the civil action." In Salta v. De Veyra and PNB v.
Purisima, this Court stated: ". . . It seems perfectly reasonable to conclude that the civil actions
mentioned in Article 33, permitted in the same manner to be filed separately from the criminal
case, may proceed similarly regardless of the result of the criminal case. Indeed, when the law
has allowed a civil case related to a criminal case, to be filed separately and to proceed
independently even during the pendency of the latter case, the intention is patent to make the
court’s disposition of the criminal case of no effect whatsoever on the separate civil case. This
must be so because the offenses specified in Article 33 are of such a nature, unlike other
offenses not mentioned, that they may be made the subject of a separate civil action because
of the distinct separability of their respective juridical cause or basis of action . . . ." What
remains to be the most important consideration as to why the decision in the criminal case
should not be considered in this appeal is the fact that private respondents were not parties
therein. It would have been entirely different if the petitioners’ cause of action was for
damages arising from a delict, in which case private respondents’ liability could only be
subsidiary pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion,
the judgment of conviction in the criminal case against Galang would have been conclusive in
the civil cases for the subsidiary liability of the private respondents.

6. ID.; ID.; LIABILITY OF EMPLOYERS FOR ACTS OR OMISSIONS OF EMPLOYEES; BASIS; DEFENSE
AVAILABLE TO EMPLOYER. — As employers of the truck driver, the private respondents are,
under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The
presumption that they are negligent flows from the negligence of their employee. That
presumption, however, is only juris tantum, not juris et de jure. Their only possible defense is
that they exercised all the diligence of a good father of a family to prevent the damage. Article
2180 reads as follows: "The obligation imposed by Article 2176 is demandable not only for
one’s own acts or omissions, but also for those of persons for whom one is responsible. . . .
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry. . . . The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence of a good father of a
family to prevent damage." The diligence of a good father referred to means the diligence in the
selection and supervision of employees. The answers of the private respondents in Civil Cases
Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to prove it.

7. ID.; ID.; INDEMNITY FOR DEATH. — In the light of recent decisions of this Court, the indemnity
for death must, however, be increased from P12,000.00 to P50,000.00.

8. ID.; ID.; NEGLIGENCE; DEFINED; TEST BY WHICH EXISTENCE OF NEGLIGENCE DETERMINED.

— Negligence was defined and described by this Court in Layugan v. Intermediate Appellate
Court, thus: ". . . Negligence is the omission to do something which a reasonable man, guided
by those considerations which ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not do (Black’s Law Dictionary,
Fifth Edition, 930), or as Judge Cooley defines it, ‘(T)he failure to observe for the protection of
the interests of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.’ (Cooley on Torts,
Fourth Edition, vol. 3, 265) In Picart v. Smith (37 Phil. 809, 813), decided more than seventy
years ago but still a sound rule, (W)e held: The test by which to determine the existence of
negligence in a particular case may be stated as follows: Did the defendant in doing the alleged
negligent act use that (reasonable care and caution which an ordinarily prudent person would
have used in the same situation?) If not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman Law. . . ." In Corliss v. Manila Railroad Company, We held: ". .
.’Negligence is want of the care required by the circumstances. It is a relative or comparative,
not an absolute, term and its application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances reasonably require. Where the danger is
great, a high degree of care is necessary, and the failure to observe it is a want of ordinary
care under the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).’"

9. ID.; ID.; ID.; EMERGENCY RULE; EXPLAINED; CASE AT BAR. — On the basis of the foregoing
definition, the test of negligence and the facts obtaining in this case, it is manifest that no
negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would
have tried to avoid running over the two boys by swerving the car away from where they were
even if this would mean entering the opposite lane. Avoiding such immediate peril would be the
natural course to take particularly where the vehicle in the opposite lane would be several
meters away and could very well slow down, move to the side of the road and give way to the
oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds
himself in a place of danger, and is required to act without time to consider the best means that
may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt
what subsequently and upon reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his won negligence. Considering the
sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted the
best means possible in the given situation to avoid hitting them. Applying the above test,
therefore, it is clear that he was not guilty of negligence.
10. ID.; ID.; ID.; PROXIMATE CAUSE; DEFINED; CASE AT BAR. — Proximate cause has been
defined as: ". . .’that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have
occurred.’ And more comprehensively, the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a natural
and probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom." Applying the above definition, although it may be said that
the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said
that the same caused the eventual injuries and deaths because of the occurrence of a sufficient
intervening event, the negligent act of the truck driver, which was the actual cause of the
tragedy. The entry of the car into the lane of the truck would not have resulted in the collision
had the latter heeded the emergency signals given by the former to slow down and give the
car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the
far right of the road, which was the proper precautionary measure under the given
circumstances, the truck driver continued at full speed towards the car. The truck driver’s
negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while
the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that
both car and truck could pass side by side with a clearance of 3.661 meters to spare.
Furthermore, the bridge has a level sidewalk which could have partially accommodated the
truck. Any reasonable man finding himself in the given situation would have tried to avoid the
car instead of meeting it head-on.

11. ID.; ID.; ID.; PRESUMPTION THAT DRIVER OF MOTOR VEHICLE NEGLIGENT; CASE AT BAR. —
The truck driver’s negligence is apparent in the records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed
allowed by law on a bridge is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a
person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any
traffic regulation.

12. ID.; ID.; ID.; DOCTRINE OF LAST CLEAR CHANCE; EXPLAINED. — Last clear chance is a
doctrine in the law of torts which states that the contributory negligence of the party injured
will not defeat the claim for damages if it is shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences of the negligence of the
injured party. In such cases, the person who had the last clear chance to avoid the mishap is
considered in law solely responsible for the consequences thereof. In Bustamante v. Court of
Appeals, We held: "The respondent court adopted the doctrine of ‘last clear chance.’ The
doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for
the negligence of the defendant where it appears that the defendant, by exercising reasonable
care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding
the plaintiff’s negligence. In other words, the doctrine of last clear chance means that even
though a person’s own acts may have placed him in a position of peril, and an injury results,
the injured person is entitled to recovery (sic). As the doctrine is usually stated, a person who
has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent
acts of his opponent or that of a third person imputed to the opponent is considered in law
solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed.,
1986, p. 165). The practical import of the doctrine is that a negligent defendant is held liable to
a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in
peril, if he, aware of the plaintiff’s peril, or according to some authorities, should have been
aware of it in the reasonable exercise of due care, had in fact an opportunity later than that of
the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799)." In Pantranco North Express,
Inc. v. Baesa, We ruled: "The doctrine of last clear chance was defined by this Court in the case
of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise: The doctrine of the last
clear chance simply, means that the negligence of a claimant does not preclude a recovery for
the negligence of defendant where it appears that the latter, by exercising reasonable care and
prudence, might have avoided injurious consequences to claimant notwithstanding his
negligence. The doctrine applies only in a situation where the plaintiff was guilty of prior or
antecedent negligence but the defendant, who had the last fair chance to avoid the impending
harm and failed to do so, is made liable for all the consequences of the accident
notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 {1918}; Glan
People’s Lumber and Hardware, Et. Al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de
Calibo, Et Al., G.R. No. 70493, May 18, 1989]. The subsequent negligence of the defendant in
failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate
cause of the accident which intervenes between the accident and the more remote negligence
of the plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable
to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as
a defense to defeat claim (sic) for damages."

DECISIO N
 DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-
G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision
dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners’
complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance
(now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh
Tuquero, Araceli Koh McKee and Elizabeth Koh Turla v. Jaime Tayag and Rosalinda Manalo", and
"George McKee and Araceli Koh McKee v. Jaime Tayag and Rosalinda Manalo", respectively, and
granted the private respondents’ counterclaim for moral damages, attorney’s fees and litigation
expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular
accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused
physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh
McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee
and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner
Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children,
respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other
hand, private respondents are the owners of the cargo truck which figured in the mishap; a
certain Ruben Galang was the driver of the truck at the time of the accident. c h a n ro b le s la wlib ra ry :re d

The antecedent facts are not disputed.

Between nine and ten o’clock in the morning of 8 January 1977, in Pulong Pulo Bridge along Mac
Arthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took
place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines `76
owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing
Plate No. S2-850 Pampanga ‘76 driven by Jose Koh. The collision resulted in the deaths of Jose
Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher
Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee, Loida Bondoc, on the other hand, was the baby sitter of one
and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc
who was at the front passenger’s seat of the car while Araceli and her two (2) sons were
seated at the car’s back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200)
cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its
way to Angeles City from San Fernando. When the northbound car was about ten (10) meters
away from the southern approach of the bridge, two (2) boys suddenly darted from the right
side of the road and into the lane of the car. The boys were moving back and forth, unsure of
whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car,
swerved to the left and entered the lane of the truck; he then switched on the headlights of
the car, applied the brakes and thereafter attempted to return to his lane. Before he could do
so, his car collided with the truck. The collision occurred in the lane of the truck, which was the
opposite lane, on the said bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a
team of police officers was forthwith dispatched to conduct an on the spot investigation. In the
sketch 1 prepared by the investigating officers, the bridge is described to be sixty (60)
"footsteps" long and fourteen (14) "footsteps" wide — seven (7) "footsteps" from the center
line to the inner edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry
brook, is made of concrete with soft shoulders and concrete railings on both sides about three
(3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck
was two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was
touching the center line of the bridge, with the smashed front side of the car resting on its front
bumper. The truck was about sixteen (16) "footsteps" away from the northern end of the bridge
while the car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced
by the right front tire of the truck measured nine (9) "footsteps", while skid marks produced by
the left front tire measured five (5) "footsteps." The two (2) rear tires of the truck, however,
produced no skid marks. c h a n ro b le s la wlib ra ry :re d n a d

In his statement to the investigating police officers immediately after the accident, Galang
admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed
on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to
Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No.
68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00
as moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses,
P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus
attorney’s fees. 3 In the second case, petitioners in G.R. No. 68102 prayed for the following: (a)
in connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00
for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as
moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages,
(b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered,
the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for
loss of earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the
complaint; and (c) with respect to George McKee, Jr., in connection with the serious physical
injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages
and the following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable
to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base hospital, and
miscellaneous expenses amounting to P5,000.00. They also sought an award of attorney’s fees
amounting to 25% of the total award plus traveling and hotel expenses, with costs. 4

On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless
Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property"
was filed with the trial court. It was docketed as Criminal Case No. 3751 and was raffled to
Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5

In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it
was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben
Galang" and, as counterclaim, prayed for the award of P15,000.00 as attorney’s fees,
P20,000.00 as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00
as business losses. 6 In Civil Case No. 4478, private respondents first filed a motion to dismiss
on grounds of pendency of another action (Civil Case No. 4477) and failure to implead an
indispensable party, Ruben Galang, the truck driver; they also filed a motion to consolidate the
case with Civil Case No. 4477 pending before Branch III of the same court, which was opposed
by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge Ignacio
Capulong. Thereupon, private respondents filed their Answer with Counterclaim 8 wherein they
alleged that Jose Koh was the person "at fault having approached the lane of the truck driven
by Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate
speed observing all traffic rules and regulations applicable under the circumstances then
prevailing;" in their counterclaim, they prayed for an award of damages as may be determined
by the court after due hearing, and the sums of P10,000.00 as attorney’s fees and P5,000.00
as expenses of litigation.c h a n ro b le s v irtu a la wlib ra ry

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a
motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No.
3751, which private respondents opposed and which the court denied. 9 Petitioners
subsequently moved to reconsider the order denying the motion for consolidation, 10 which
Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case No.
4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided over by
Judge Mario Castañeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuñag,
Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and
offered several documentary exhibits. Upon the other hand, private respondents presented as
witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia,
Pfc. Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector
Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and
Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the
defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman
Dayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in
the aforesaid criminal case. The dispositive portion of the decision reads as follows: jg c :c h a n ro b le s .c o m.p h

"WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben
Galang guilty beyond reasonable doubt of the crime charged in the information and after
applying the provisions of Article 365 of the Revised Penal Code and indeterminate sentence
law, this Court, imposes upon said accused Ruben Galang the penalty of six (6) months of
arresto mayor as minimum to two (2) years, four (4) months and one (1) day of prision
correccional as maximum; the accused is further sentenced to pay and indemnify the heirs of
Loida Bondoc the amount of P12,000.00 as indemnity for her death, to reimburse the heirs of
Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs of
Loida Bondoc the amount of P20,000.00 representing her loss of income; to indemnify and pay
the heirs of the deceased Jose Koh the value of the car in the amount of P53,910.95, and to
pay the costs." 15

The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel
for petitioners filed with Branch III of the court — where the two (2) civil cases were pending —
a manifestation to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on 12
November 1980 and awarded the private respondents moral damages, exemplary damages
and attorney’s fees. 17 The dispositive portion of the said decision reads as follows: jg c :c h a n ro b le s .c o m.p h

"WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and

against the plaintiffs, these cases are hereby ordered DISMISSED with costs against the
plaintiffs. The defendants had proven their counter-claim, thru evidences (sic) presented and
unrebutted. Hence, they are hereby awarded moral and exemplary damages in the amount of
P100,000.00 plus attorney’s fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The
actual damages claimed for (sic) by the defendants is (sic) hereby dismissed for lack of proof to
that effect (sic)." 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and
was received on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal
was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court’s Third Division.
Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November
1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and
C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-
CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads: jg c :c h a n ro b le s .c o m.p h

"DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang
kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol." c h a n ro b le s v irtu a la wlib ra ry

A motion for reconsideration of the decision was denied by the respondent Court in its
Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with
this Court; said petition was subsequently denied. A motion for its reconsideration was denied
with finality in the Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive
portion of which reads:jg c :c h a n ro b le s .c o m.p h

"WHEREFORE, the decision appealed from is hereby reversed and set aside and another one is
rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

For the death of Jose Koh: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

P50,000.00 as moral damages

P12,000.00 as death indemnity

P16,000.00 for the lot and tomb (Exhs. U and U-1)

P4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)

P950.00 for the casket (Exh. M)

P375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

P50,000.00 as moral damages

P12,000.00 as death indemnity

P1,000.00 for the purchase of the burial lot (Exh. M)

P950.00 for funeral services (Exh. M-1)

P375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

P25,000.00 as moral damages

P672.00 for Clark Field Hospital (Exh. E)

P4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and D-2)

P1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

P25,000.00 as moral damages

P1,055.00 paid to St. Francis Medical Center (Exhs. G and G-1)

P75.00 paid to St. Francis Medical Center (Exhs G-2 and G-3)

P428.00 to Carmelite General Hospital (Exh. F)

P114.20 to Muñoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

P10,000.00 as moral damages

P1,231.10 to St. Francis Medical Center (Exhs. L and L-1)

P321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another
P10,000.00 as counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED." 26

The decision is anchored principally on the respondent Court’s findings that it was Ruben
Galang’s inattentiveness or reckless imprudence which caused the accident. The appellate court
further said that the law presumes negligence on the part of the defendants (private
respondents), as employers of Galang, in the selection and supervision of the latter; it was
further asserted that these defendants did not allege in their Answers the defense of having
exercised the diligence of a good father of a family in selecting and supervising the said
employee. 27 This conclusion of reckless imprudence is based on the following findings of
fact: jg c :c h a n ro b le s .c o m.p h

"In the face of these diametrically opposed judicial positions, the determinative issue in this
appeal is posited in the fourth assigned error as follows: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

‘IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK
BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.’

Supportive of plaintiffs’ version, principal witness Araceli Koh McKee testified thus: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

‘Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right
side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to
avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid
hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck
driver, to slow down to give us the right of way to come back to our right lane.

Q Did the truck slow down? c h a n ro b le s v irtu a la wlib ra ry

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is
(sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact
(sic), sir.’ (tsn, pp. 5-6, July 22, 1977); or (Exhibit ‘O’ in these Civil Cases).
 x x x

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not
reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit ‘1’, how
did you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our
right lane on side (sic) of the highway, sir.’ (tsn. pp. 33-34, July 22, 1977) or (Exhibit `O’ in these
Civil Cases)’ (pp. 30-31, Appellants’ Brief).

Plaintiffs’ version was successfully corroborated to Our satisfaction by the following facts and
circumstances: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped
only when it had already collided with the car: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

x x x

Tanhueco repeated the same testimony during the hearing in the criminal case: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

x x x

Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the
first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured
passengers to the hospital.

We are not prepared to accord faith and credit to defendants’ witnesses, Zenaida Soliman, a
passenger of the truck, and Roman Dayrit, who supposedly lived across the street.

Regarding Soliman, experience has shown that in the ordinary course of events people usually
take the side of the person with whom they are associated at the time of the accident,
because, as a general rule, they do not wish to be identified with the person who was at fault.
Thus an imaginary bond is unconsciously created among the several persons within the same
group (People v. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness.
He did not go to the succor of the injured persons. He said he wanted to call the police
authorities about the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial
court in the criminal case acted correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck
at a safe distance from the car, according to plaintiffs (p. 25, Appellants’ Brief). This contention
of appellants was completely passed sub-silencio or was not refuted by appellees in their brief.
Exhibit 2 is one of the exhibits not included in the record. According to the Table of Contents
submitted by the court below, said Exhibit 2 was not submitted by defendants-appellees. In
this light, it is not far-fetched to surmise that Galang’s claim that he stopped was an eleventh-
hour desperate attempt to exculpate himself from imprisonment and damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

ATTY. SOTTO: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

Q Do I understand from your testimony that inspite of the fact that you admitted that the road
is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you
first saw that car only about ten (10) meters away from you for the first time?

x x x

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it
before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979).’ (p. 16, Appellants’ Brief)’

Galang’s testimony substantiate (sic) Tanhueco’s statement that Galang stopped only because
of the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed
in Galang’s affidavit (Exh. 2; p. 25, Appellants’ Brief), it is well-nigh impossible to avoid a
collision on a bridge.

5. Galang’s truck stopped because of the collision, and not because he waited for Jose Koh to
return to his proper lane. The police investigator, Pfc. Fernando L. Nunag, stated that he found
skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20,
t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since
the skid marks were found under the truck and none were found at the rear of the truck, the
reasonable conclusion is that the skid marks under the truck were caused by the truck’s front
wheels when the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to
avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very short
distance to avoid a collision, and in his futile endeavor to avoid the collision he abruptly stepped
on his brakes but the smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the
part of the defendants in the selection of their driver or in the supervision over him. Appellees
did not allege such defense of having exercised the duties of a good father of a family in the
selection and supervision of their employees in their answers. They did not even adduce
evidence that they did in fact have methods of selection and programs of supervision. The
inattentiveness or negligence of Galang was the proximate cause of the mishap. If Galang’s
attention was on the highway, he would have sighted the car earlier or at a very safe distance
than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision was
already inevitable, because at the time that he entered the bridge his attention was not riveted
to the road in front of him.
c h a n ro b le s .c o m:c ra la w:re d

On the question of damages, the claims of appellants were amply proven, but the items must
be reduced." 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed
by private respondents on the basis of which the respondent Court, in its Resolution of 3 April
1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the
trial court’s judgment of 12 November 1980. A motion to reconsider this Resolution was denied
by the respondent Court on 4 July 1984. 30

Hence, this petition.

Petitioners allege that respondent Court: c h a n ro b 1 e s v irtu a l1 a wlib ra ry

"I

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION
BY MERELY BASING IT FROM (sic) A MERE `PRESUMPTION,’ TOTALLY DISREGARDING THE PRIVATE
RESPONDENTS’ DRIVER’S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE
PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE
ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT’S RESOLUTIONS
(ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS,
CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A

DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, `IT CANNOT
CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF
THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.’

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING

PRONOUNCEMENT, WHEN IT HELD: `IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS
(APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT
THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS’
DRIVER..’

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR, COMMITTED GRAVE ABUSE OF DISCRETION

AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES.

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE
FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE
EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED
FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS’ DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY

ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT
SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND
THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.

VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY

ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS
WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE
RELATIVE TO THE AWARD OF DAMAGES." 31

In the Resolution of 12 September 1984, we required private respondents to Comment on the

petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this
Court then gave due course to the instant petitions and required petitioners to file their Brief,
35 which they accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and
counter-arguments, some observations on the procedural vicissitudes of these cases are in
order.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-
delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal
Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for
joint trial in Branch III of the trial court. The records do not indicate any attempt on the part of
the parties, and it may therefore be reasonably concluded that none was made, to consolidate
Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed,
and understandably so, since by then no specific provision of law or ruling of this Court
expressly allowed such a consolidation, that an independent civil action, authorized under
Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot
be consolidated with the criminal case. Indeed, such consolidation could have been farthest
from their minds as Article 33 itself expressly provides that the "civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence."
Be that as it may, there was then no legal impediment against such consolidation. Section 1,
Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial
court, or in short, attain justice with the least expense to the parties litigants, 36 would have
easily sustained a consolidation, thereby preventing the unseeming, if not ludicrous, spectacle
of two (2) judges appreciating, according to their respective orientation, perception and
perhaps even prejudice, the same facts differently, and thereafter rendering conflicting
decisions. Such was what happened in this case. It should not, hopefully, happen anymore. In
the recent case of Cojuangco v. Court of Appeals, 37 this Court held that the present provisions
of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for
the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with
the criminal action subject, however, to the condition that no final judgment has been rendered
in that criminal case.
c h a n ro b le s v irtu a la wlib ra ry

Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty
of reckless imprudence, although already final by virtue of the denial by no less than this Court
of his last attempt to set aside the respondent Court’s affirmance of the verdict of conviction,
has no relevance or importance to this case.

As We held in Dionisio v. Alvendia, 38 the responsibility arising from fault or negligence in a

quasi-delict is entirely separate and distinct from the civil liability arising from negligence under
the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes,
"in the case of independent civil actions under the new Civil Code, the result of the criminal
case, whether acquittal or conviction, would be entirely irrelevant to the civil action." 39 In Salta
v. De Veyra and PNB v. Purisima, 40 this Court stated: jg c :c h a n ro b le s .c o m.p h

". . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33,
permitted in the same manner to be filed separately from the criminal case, may proceed
similarly regardless of the result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately
and to proceed independently even during the pendency of the latter case, the intention is
patent to make the court’s disposition of the criminal case of no effect whatsoever on the
separate civil case. This must be so because the offenses specified in Article 33 are of such a
nature, unlike other offenses not mentioned, that they may be made the subject of a separate
civil action because of the distinct separability of their respective juridical cause or basis of
action . . . ." c ra la wv irtu a 1 a wlib ra ry

What remains to be the most important consideration as to why the decision in the criminal
case should not be considered in this appeal is the fact that private respondents were not
parties therein. It would have been entirely different if the petitioners’ cause of action was for
damages arising from a delict, in which case private respondents’ liability could only be
subsidiary pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion,
the judgment of conviction in the criminal case against Galang would have been conclusive in
the civil cases for the subsidiary liability of the private respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is
whether or not respondent Court’s findings in its challenged resolution are supported by
evidence or are based on mere speculations, conjectures and presumptions. The principle is
well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under
Rule 45 of the Revised Rules of Court, only questions of law may be raised. The resolution of
factual issues is the function of the lower courts whose findings on these matters are received
with respect and are, as a rule, binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and
the Court of Appeals may be set aside when such findings are not supported by the evidence
or when the trial court failed to consider the material facts which would have led to a conclusion
different from what was stated in its judgment. 43 The same is true where the appellate court’s
conclusions are grounded entirely on conjectures, speculations and surmises 44 or where the
conclusions of the lower courts are based on a misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are based on a misapprehension of
facts and the inferences made therefrom are manifestly mistaken. The respondent Court’s
decision of 29 November 1983 makes the correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly
invaded the lane of the truck and that the collision occurred in said lane gave rise to the
presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed
negligence, the appellate court immediately concluded that it was Jose Koh’s negligence that
was the immediate and proximate cause of the collision. This is an unwarranted deduction as
the evidence for the petitioners convincingly shows that the car swerved into the truck’s lane
because as it approached the southern end of the bridge, two (2) boys darted across the road
from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh
McKee: jg c :c h a n ro b le s .c o m.p h

"Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right
side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to
avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid
hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck
driver, to slow down to give us the right of way to come back to our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is
(sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact
(sic), sir." 46

Her credibility and testimony remained intact even during cross examination. Jose Koh’s entry
into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a
greater peril — death or injury to the two (2) boys. Such act can hardly be classified as
negligent.

Negligence was defined and described by this Court in Layugan v. Intermediate Appellate
Court, 47 thus: jg c :c h a n ro b le s .c o m.p h

". . . Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do (Black’s Law Dictionary, Fifth
Edition, 930), or as Judge Cooley defines it, ‘(T)he failure to observe for the protection of the
interests of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.’ (Cooley on Torts,
Fourth Edition, vol. 3, 265).

In Picart v. Smith (87 Phil 809, 813), decided more than seventy years ago but still a sound rule,
(W)e held: c h a n ro b le s la wlib ra ry

The test by which to determine the existence of negligence in a particular case may be stated
as follows: Did the defendant in doing the alleged negligent act use that (reasonable care and
caution which an ordinarily prudent person would have used in the same situation?) If not, then
he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied
by the imaginary conduct of the discreet paterfamilias of the Roman law. . . ." c ra la wv irtu a 1 a wlib ra ry

In Corliss v. Manila Railroad Company, 48 We held: jg c :c h a n ro b le s .c o m.p h

". . .’Negligence is want of the care required by the circumstances. It is a relative or

comparative, not an absolute, term and its application depends upon the situation of the
parties and the degree of care and vigilance which the circumstances reasonably require.
Where the danger is great, a high degree of care is necessary, and the failure to observe it is a
want of ordinary care under the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac.
549 (1894)’." c ra la wv irtu a 1 a wlib ra ry

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this
case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and
ordinary prudent man would have tried to avoid running over the two boys by swerving the car
away from where they were even if this would mean entering the opposite lane. Avoiding such
immediate peril would be the natural course to take particularly where the vehicle in the
opposite lane would be several meters away and could very well slow down, move to the side
of the road and give way to the oncoming car. Moreover, under what is known as the
emergency rule, "one who suddenly finds himself in a place of danger, and is required to act
without time to consider the best means that may be adopted to avoid the impending danger,
is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the emergency in which he finds himself is
brought about by his own negligence." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose
Koh adopted the best means possible in the given situation to avoid hitting them. Applying the
above test, therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his
negligence was the proximate cause of the collision. Proximate cause has been defined as: jg c :c h a n ro b le s .c o m.p h

". . .’that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have occurred.’
And more comprehensively, the proximate legal cause is that acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom." 50

Applying the above definition, although it may be said that the act of Jose Koh, if at all
negligent, was the initial act in the chain of events, it cannot be said that the same caused the
eventual injuries and deaths because of the occurrence of a sufficient intervening event, the
negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car
into the lane of the truck would not have resulted in the collision had the latter heeded the
emergency signals given by the former to slow down and give the car an opportunity to go back
into its proper lane. Instead of slowing down and swerving to the far right of the road, which
was the proper precautionary measure under the given circumstances, the truck driver
continued at full speed towards the car. The truck driver’s negligence becomes more apparent
in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and
the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by
side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk
which could have partially accommodated the truck. Any reasonable man finding himself in the
given situation would have tried to avoid the car instead of meeting it head-on.

The truck driver’s negligence is apparent in the records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed
allowed by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil
Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was
violating any traffic regulation. We cannot give credence to private respondents’ claim that
there was an error in the translation by the investigating officer of the truck driver’s response in
Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The law
presumes that official duty has been regularly performed; 53 unless there is proof to the
contrary, this presumption holds. In the instant case, private respondents’ claim is based on
mere conjecture.

The truck driver’s negligence was likewise duly established through the earlier quoted
testimony of petitioner Araceli Koh McKee which was duly corroborated by the testimony of
Eugenio Tanhueco, an impartial eyewitness to the mishap.

Araceli Koh McKee testified further, thus: c h a n ro b le s .c o m.p h :v irtu a la wlib ra ry

x x x

"Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not
reduce its speed before the actual impact of collision as you narrated in this Exhibit ‘1’, how did
you know?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our
right lane on side (sic) of the highway, sir.’ (tsn, pp. 33-34, July 22, 1977) or (Exhibit `O’ in these
Civil Cases) (pp. 30-31, Appellants’ Brief)" 54

while Eugenio Tanhueco testified thus: jg c :c h a n ro b le s .c o m.p h

"Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what happened?

A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims.’ (tsn.
28, April 19, 1979)

x x x

Q From the time you saw the truck to the time of the impact, will you tell us if the said truck
ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the car and it was already
motionless.’ (tsn. 31, April 19, 1979; Underlining supplied). (p. 27, Appellants’ Brief)." 55

Clearly, therefore, it was the truck driver’s subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the collision which was the proximate cause of
the resulting accident.

Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here.
Last clear chance is a doctrine in the law of torts which states that the contributory negligence
of the party injured will not defeat the claim for damages if it is shown that the defendant
might, by the exercise of reasonable care and prudence, have avoided the consequences of the
negligence of the injured party. In such cases, the person who had the last clear chance to
avoid the mishap is considered in law solely responsible for the consequences thereof. 56

In Bustamante v. Court of Appeals, 57 We held: jg c :c h a n ro b le s .c o m.p h

"The respondent court adopted the doctrine of `last clear chance.’ The doctrine, stated broadly,
is that the negligence of the plaintiff does not preclude a recovery for the negligence of the
defendant where it appears that the defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s
negligence. In other words, the doctrine of last clear chance means that even though a
person’s own acts may have placed him in a position of peril, and an injury results, the injured
person is entitled to recovery (sic). As the doctrine is usually stated, a person who has the last
clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his
opponent or that of a third person imputed to the opponent is considered in law solely
responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986,
p. 165).

The practical import of the doctrine is that a negligent defendant is held liable to a negligent
plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he,
aware of the plaintiff’s peril, or according to some authorities, should have been aware of it in
the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to
avoid an accident (57 Am. Jur., 2d, pp. 798-799)." c ra la wv irtu a 1 a wlib ra ry

In Pantranco North Express, Inc., v. Baesa, 58 We ruled: jg c :c h a n ro b le s .c o m.p h

"The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan
Water District, 104 Phil. 397 (1958), in this wise: c h a n ro b 1 e s v irtu a l1 a wlib ra ry
The doctrine of the last clear chance simply, means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm and
failed to do so, is made liable for all the consequences of the accident notwithstanding the prior
negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People’s Lumber and
Hardware, Et. Al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, Et Al., G.R. No.
70493, May 18, 1989]. The subsequent negligence of the defendant in failing to exercise
ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the
accident which intervenes between the accident and the more remote negligence of the
plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith, supra]. c h a n ro b le s v irtu a la wlib ra ry

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable
to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as
a defense to defeat claim (sic) for damages." c ra la wv irtu a 1 a wlib ra ry

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck
driver’s negligence in failing to exert ordinary care to avoid the collision which was, in law, the
proximate cause of the collision. As employers of the truck driver, the private respondents are,
under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The
presumption that they are negligent flows from the negligence of their employee. That
presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible defense
is that they exercised all the diligence of a good father of a family to prevent the damage.
Article 2180 reads as follows: jg c :c h a n ro b le s .c o m.p h

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

x x x

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

x x x

The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage." c ra la wv irtu a 1 a wlib ra ry

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

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

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

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

Costs against private respondents.

SO ORDERED.

Gutierrez, Jr., Feliciano and Romero, JJ., concur.

Bidin, J., took no part.

Endnotes:

1. Ex hibit "S."
2. In the sk e tch plan pre pare d by Ge ode tic Engr. Be nito J. C araan [Ex hibit "Y" ], the bridge is e stim ate d
to be 42.15 m e te rs in le ngth and 7.5. m e te rs in width.

3. R e cord on Appe al, 220.

4. Id., 16-18.

5. R e cord on Appe al, 121-124.

6. Id., 226-227.

7. Id., 22-25; 26-28; 28-32; 34-36.

8. Id., 39-43.

9. R e cord on Appe al, 45-48; 49-52; 52-53.

10. Id., 53-57.

11. Id., 91, 92, 100, 101, 103, 104 and 105.

12. R e cord on Appe al, 107, 109, 111 and 112.

13. Id., 124, e t se q.

14. Id., 138, e t. se q.

15. Id., 160-161.

16. R e cord on Appe al, 120-121.

17. Id., 86-120.

18. Id., 119-120.

19. Id., 6.

20. Pe r Associate Justice O nofre A. Villaluz, concurre d in by Associate Justice s C risolito Pascual and
Guille rm o P. Villasor.

21. Anne x "C " of Pe tition; R ollo, 69-77.

22. Anne x "C -1", Id.; Id., 78.

23. G.R . No. 62713.

24. Anne x "D", Pe tition, op. cit.; R ollo, op. cit., 79.

25. Pe r Associate Justice Porfirio V. Sison, concurre d in by Associate Justice s Abdulwahid A. Bidin,
Marce lino R . Ve loso and De side rio P. Jurado.

26. R ollo, 88-89.

27. Id., 88.

28. R ollo, 83-88.

29. R ollo, 61-65.

30. Id., 67.

31. R ollo, 213-214.

32. R ollo, 150.

33. Id., 157-175.

34. Id., 185-198.

35. Id., 199.

36. C años v. Pe ralta, 115 SC R A 843 [1982], citing 1 C .J.S. 1342-1343.

37. 203 SC R A 619 [1991].

38. 10 Phil. 443 [1957].

39. At page 447.

40. 117 SC R A 212, 218-219 [1982]; se e also C astillo v. C ourt of Appe als, 176 SC R A 591. [1989];
Andam o v. Inte rm e diate Appe llate C ourt, 191 SC R A 195 [1990].

41. Martine z v. Barre do, 81 Phil. 1 [1948]; Miranda v. Malate Garage and Tax icab, Inc., 99 Phil. 670
[1956]; Manalo v. R oble s Transportation C o., Inc., 99 Phil. 729 [1956].

42. FNC B Finance v. Estavillo, 192 SC R A 514 [1990]; R añe se s v. Inte rm e diate Appe llate C ourt, 187 SC R A
397 [1990]; R e m alante v. Tibe , 158 SC R A 138 [1988].
43. C apco v. Macasae t, 189 SC R A 561 [1990].

44. O rcino v. C ivil Se rvice C om m ission, 190 SC R A 815 [1990]; Tupue v. Urge l, 161 SC R A 417 [1988];
Tole ntino v. De Je sus, 56 SC R A 167 [1974].

45. Pajunar v. C ourt of Appe als, 175 SC R A 464 [1989]; Se se v. Inte rm e diate Appe llate C ourt, 152 SC R A
585 [1987].

46. TSN, 22 July 1977, 5-6; Ex hibit "O ", R ollo, 83.

47. 167 SC R A 363 [1988].

48. 27 SC R A 674 [1969].

49. Gan v. C ourt of Appe als, 165 SC R A 378 [1988], citing Sie gl v. W atson, 195 NW 867 and othe rs.

50. Vda. de Bataclan v. Me dina, 102 Phil. 181 [1957], citing 38 Am . Jur. 695-696.

51. R ollo, 148.

52. Se ction 53, Motor Ve hicle Law.

53. Se ction 2 (m ), R ule 131, R e vise d R ule s of C ourt.

54. R ollo, 83-84.

55. Id., 84.

56. O ng v. Me tropolitan W ate r District, 104 Phil. 405 [1958]; De l Prado v. Manila Ele ctric C o., 52 Phil. 900
[1929]; Picart v. Sm ith, 37 Phil. 809 [1918].

57. 193 SC R A 603 [1991].

58. 179 SC R A 384 [1989].

59. R am os v. Pe psi-C ola Bottling C o., 19 SC R A 289 [1967], citing Bahia v. Litonjua, 30 Phil. 624 [1915].

60. R am os v. Pe psi-C ola Bottling C o., supra.

61. Pe ople v. Sison, 189 SC R A 643 [1989]; Pe ople v. Narit, 197 SC R A 334 [1991]; Pe ople v. Tiozon, 198
SC R A 368 [1991]; Pe ople v. Lubre o, 200 SC R A 11 [1991]; Dangwa Trans. C o., Inc. v. C ourt of Appe als,
202 SC R A 574 [1991].