full txt tort cases 2nd set

8/10/2019 Full Txt Tort Cases 2nd Set

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G.R. No. L-12219 March 15, 1918AMADO PICART, plaintiff-appellant,vs.FRANK SMITH, JR.,defendant-appellee.Alejo Mabanag for appellant.G. E. Campbell for appellee.

STREET, J.:In this action the plaintiff, Amado Picart, seeks to recover of the defendant,Frank Smith, jr., the sum of P31,000, as damages alleged to have beencaused by an automobile driven by the defendant. From a judgment of theCourt of First Instance of the Province of La Union absolving the defendantfrom liability the plaintiff has appealed.The occurrence which gave rise to the institution of this action took place onDecember 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. Itappears that upon the occasion in question the plaintiff was riding on his

pony over said bridge. Before he had gotten half way across, the defendantapproached from the opposite direction in an automobile, going at the rateof about ten or twelve miles per hour. As the defendant neared the bridgehe saw a horseman on it and blew his horn to give warning of his approach.He continued his course and after he had taken the bridge he gave twomore successive blasts, as it appeared to him that the man on horsebackbefore him was not observing the rule of the road.The plaintiff, it appears, saw the automobile coming and heard the warningsignals. However, being perturbed by the novelty of the apparition or the

rapidity of the approach, he pulled the pony closely up against the railing onthe right side of the bridge instead of going to the left. He says that thereason he did this was that he thought he did not have sufficient time to getover to the other side. The bridge is shown to have a length of about 75meters and a width of 4.80 meters. As the automobile approached, thedefendant guided it toward his left, that being the proper side of the roadfor the machine. In so doing the defendant assumed that the horsemanwould move to the other side. The pony had not as yet exhibited fright, andthe rider had made no sign for the automobile to stop. Seeing that the pony

was apparently quiet, the defendant, instead of veering to the right whileyet some distance away or slowing down, continued to approach directlytoward the horse without diminution of speed. When he had gotten quitenear, there being then no possibility of the horse getting across to the otherside, the defendant quickly turned his car sufficiently to the right to escapehitting the horse alongside of the railing where it as then standing; but in sodoing the automobile passed in such close proximity to the animal that itbecame frightened and turned its body across the bridge with its headtoward the railing. In so doing, it as struck on the hock of the left hind leg

by the flange of the car and the limb was broken. The horse fell and itsrider was thrown off with some violence. From the evidence adduced in thecase we believe that when the accident occurred the free space where thepony stood between the automobile and the railing of the bridge wasprobably less than one and one half meters. As a result of its injuries thehorse died. The plaintiff received contusions which caused temporaryunconsciousness and required medical attention for several days.


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The question presented for decision is whether or not the defendant inmaneuvering his car in the manner above described was guilty ofnegligence such as gives rise to a civil obligation to repair the damagedone; and we are of the opinion that he is so liable. As the defendantstarted across the bridge, he had the right to assume that the horse andthe rider would pass over to the proper side; but as he moved toward the

center of the bridge it was demonstrated to his eyes that this would not bedone; and he must in a moment have perceived that it was too late for thehorse to cross with safety in front of the moving vehicle. In the nature ofthings this change of situation occurred while the automobile was yet somedistance away; and from this moment it was not longer within the power ofthe plaintiff to escape being run down by going to a place of greater safety.The control of the situation had then passed entirely to the defendant; andit was his duty either to bring his car to an immediate stop or, seeing thatthere were no other persons on the bridge, to take the other side and pass

sufficiently far away from the horse to avoid the danger of collision. Insteadof doing this, the defendant ran straight on until he was almost upon thehorse. He was, we think, deceived into doing this by the fact that the horsehad not yet exhibited fright. But in view of the known nature of horses,there was an appreciable risk that, if the animal in question wasunacquainted with automobiles, he might get exited and jump under theconditions which here confronted him. When the defendant exposed thehorse and rider to this danger he was, in our opinion, negligent in the eyeof the law.

The test by which to determine the existence of negligence in a particularcase may be stated as follows: Did the defendant in doing the allegednegligent act use that person would have used in the same situation? If not,then he is guilty of negligence. The law here in effect adopts the standardsupposed to be supplied by the imaginary conduct of the discreetpaterfamilias of the Roman law. The existence of negligence in a given caseis not determined by reference to the personal judgment of the actor in thesituation before him. The law considers what would be reckless,blameworthy, or negligent in the man of ordinary intelligence and prudence

and determines liability by that.The question as to what would constitute the conduct of a prudent man in agiven situation must of course be always determined in the light of humanexperience and in view of the facts involved in the particular case. Abstractspeculations cannot here be of much value but this much can be profitablysaid: Reasonable men govern their conduct by the circumstances which arebefore them or known to them. They are not, and are not supposed to be,omniscient of the future. Hence they can be expected to take care onlywhen there is something before them to suggest or warn of danger. Could a

prudent man, in the case under consideration, foresee harm as a result ofthe course actually pursued? If so, it was the duty of the actor to takeprecautions to guard against that harm. Reasonable foresight of harm,followed by ignoring of the suggestion born of this prevision, is alwaysnecessary before negligence can be held to exist. Stated in these terms, theproper criterion for determining the existence of negligence in a given caseis this: Conduct is said to be negligent when a prudent man in the position


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of the tortfeasor would have foreseen that an effect harmful to another wassufficiently probable to warrant his foregoing conduct or guarding againstits consequences.Applying this test to the conduct of the defendant in the present case wethink that negligence is clearly established. A prudent man, placed in theposition of the defendant, would in our opinion, have recognized that the

course which he was pursuing was fraught with risk, and would thereforehave foreseen harm to the horse and the rider as reasonable consequenceof that course. Under these circumstances the law imposed on thedefendant the duty to guard against the threatened harm.It goes without saying that the plaintiff himself was not free from fault, forhe was guilty of antecedent negligence in planting himself on the wrongside of the road. But as we have already stated, the defendant was alsonegligent; and in such case the problem always is to discover which agentis immediately and directly responsible. It will be noted that the negligent

acts of the two parties were not contemporaneous, since the negligence ofthe defendant succeeded the negligence of the plaintiff by an appreciableinterval. Under these circumstances the law is that the person who has thelast fair chance to avoid the impending harm and fails to do so ischargeable with the consequences, without reference to the priornegligence of the other party.The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil.Rep., 359) should perhaps be mentioned in this connection. This Courtthere held that while contributory negligence on the part of the person

injured did not constitute a bar to recovery, it could be received in evidenceto reduce the damages which would otherwise have been assessed whollyagainst the other party. The defendant company had there employed theplaintiff, as a laborer, to assist in transporting iron rails from a barge inManila harbor to the company's yards located not far away. The rails wereconveyed upon cars which were hauled along a narrow track. At certainspot near the water's edge the track gave way by reason of the combinedeffect of the weight of the car and the insecurity of the road bed. The carwas in consequence upset; the rails slid off; and the plaintiff's leg was

caught and broken. It appeared in evidence that the accident was due tothe effects of the typhoon which had dislodged one of the supports of thetrack. The court found that the defendant company was negligent in havingfailed to repair the bed of the track and also that the plaintiff was, at themoment of the accident, guilty of contributory negligence in walking at theside of the car instead of being in front or behind. It was held that while thedefendant was liable to the plaintiff by reason of its negligence in havingfailed to keep the track in proper repair nevertheless the amount of thedamages should be reduced on account of the contributory negligence in

the plaintiff. As will be seen the defendant's negligence in that caseconsisted in an omission only. The liability of the company arose from itsresponsibility for the dangerous condition of its track. In a case like the onenow before us, where the defendant was actually present and operating theautomobile which caused the damage, we do not feel constrained toattempt to weigh the negligence of the respective parties in order toapportion the damage according to the degree of their relative fault. It is


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enough to say that the negligence of the defendant was in this case theimmediate and determining cause of the accident and that the antecedentnegligence of the plaintiff was a more remote factor in the case.A point of minor importance in the case is indicated in the special defensepleaded in the defendant's answer, to the effect that the subject matter ofthe action had been previously adjudicated in the court of a justice of the

peace. In this connection it appears that soon after the accident in questionoccurred, the plaintiff caused criminal proceedings to be instituted before ajustice of the peace charging the defendant with the infliction of seriousinjuries (lesiones graves). At the preliminary investigation the defendantwas discharged by the magistrate and the proceedings were dismissed.Conceding that the acquittal of the defendant at the trial upon the merits ina criminal prosecution for the offense mentioned would be res adjudicataupon the question of his civil liability arising from negligence -- a point uponwhich it is unnecessary to express an opinion -- the action of the justice of

the peace in dismissing the criminal proceeding upon the preliminaryhearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil.Rep., 564.)From what has been said it results that the judgment of the lower courtmust be reversed, and judgment is her rendered that the plaintiff recover ofthe defendant the sum of two hundred pesos (P200), with costs of otherinstances. The sum here awarded is estimated to include the value of thehorse, medical expenses of the plaintiff, the loss or damage occasioned toarticles of his apparel, and lawful interest on the whole to the date of this

recovery. The other damages claimed by the plaintiff are remote orotherwise of such character as not to be recoverable. So ordered.

G.R. No. 157658 October 15, 2007PHILIPPINE NATIONAL RAILWAYS and VIRGILIO J. BORJA,Petitioners,vs.COURT OF APPEALS (Second Division), CORAZON C. AMORES, MA.

EMILIE A. MOJICA, CECILE C. SISON, DINO C. AMORES, LARISA C.AMORES, ARMAND JINO C. AMORES and JOHN C. AMORES,Respondents.D E C I S I O NNACHURA, J.:Before the Court is a petition for review on certiorari under Rule 45 of the1997 Rules of Civil Procedure, as amended, seeking to annul and set asidethe Decision1of the Court of Appeals (CA) in CA-G.R. CV No. 54906 whichreversed the Decision2of the Regional Trial Court (RTC) of Manila, Branch

28, in Civil Case No. 92-61987.The factual antecedents are as follows:In the early afternoon of April 27, 1992, Jose Amores (Amores) wastraversing the railroad tracks in Kahilum II Street, Pandacan, Manila. Beforecrossing the railroad track, he stopped for a while then proceededaccordingly.3 Unfortunately, just as Amores was at the intersection, a


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Philippine National Railways (PNR) train with locomotive number T-517turned up and collided with the car.4At the time of the mishap, there was neither a signal nor a crossing bar atthe intersection to warn motorists of an approaching train. Aside from therailroad track, the only visible warning sign at that time was the defectivestandard signboard "STOP, LOOK and LISTEN" wherein the sign "Listen"

was lacking while that of "Look" was bent.

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No whistle blow from the trainwas likewise heard before it finally bumped the car of Amores.6 Afterimpact, the car was dragged about ten (10) meters beyond the center ofthe crossing.7Amores died as a consequence thereof.On July 22, 1992, the heirs of Amores, consisting of his surviving wife andsix children, herein respondents, filed a Complaint for Damages8 againstpetitioners PNR and Virgilio J. Borja (Borja), PNRs locomotive driver at thetime of the incident, before the RTC of Manila. The case was raffled toBranch 28 and was docketed as Civil Case No. 92-61987. In their

complaint, respondents averred that the trains speedometer was defective,and that the petitioners negligence was the proximate cause of the mishapfor their failure to take precautions to prevent injury to persons andproperty despite the dense population in the vicinity. They then prayed foractual and moral damages, as well as attorneys fees.9In their Answer,10 the petitioners denied the allegations, stating that thetrain was railroad-worthy and without any defect. According to them, theproximate cause of the death of Amores was his own carelessness andnegligence, and Amores wantonly disregarded traffic rules and regulations

in crossing the railroad tracks and trying to beat the approaching train.They admitted that there was no crossing bar at the site of the accidentbecause it was merely a barangay road.11PNR stressed that it exercised thediligence of a good father of a family in the selection and supervision of thelocomotive driver and train engineer, Borja, and that the latter likewiseused extraordinary diligence and caution to avoid the accident. Petitionersfurther asserted that respondents had the last clear chance to avoid theaccident but recklessly failed to do so.After trial on the merits, on August 22, 1996, the RTC rendered judgment in

favor of the petitioners, the dispositive portion of which reads:WHEREFORE, judgment is hereby rendered dismissing the complaint of theplaintiffs and the defendants counterclaim.The costs shall be halved and paid equally by the parties.The counsel for the defendants is hereby ordered to inform this court who isthe legal representative of the deceased defendant, Virgilio Borja, within ten(10) days from receipt of a copy of this decision.SO ORDERED.12The RTC rationalized that the proximate cause of the collision was Amores

fatal misjudgment and the reckless course of action he took in crossing therailroad track even after seeing or hearing the oncoming train.On appeal, the CA reversed the RTC decision, as follows:WHEREFORE, the assailed Decision of the Regional Trial Court of Manila,Branch 28 is hereby REVERSED. The defendants PNR and the estate ofVirgilio J. Borja are jointly and severally liable to pay plaintiffs the following:1) The amount of P122,300.00 for the cost of damage to the car; and,


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2) The amount of P50,000 as moral damages.For lack of official receipts for funeral expenses and specimen of the lastpay slip of the deceased, the claim for reimbursement of funeral expensesand claim for payment of support is hereby DENIED for lack of basis. Costsagainst Defendants.SO ORDERED.13

In reversing the trial courts decision, the appellate court found thepetitioners negligent. The court based the petitioners negligence on thefailure of PNR to install a semaphore or at the very least, to post a flagman,considering that the crossing is located in a thickly populated area.Moreover, the signboard "Stop, Look and Listen" was found insufficientbecause of its defective condition as described above. Lastly, no negligencecould be attributed to Amores as he exercised reasonable diligence incrossing the railroad track.Aggrieved by this reversal, the petitioners filed the present petition for

review on certiorari, raising the following grounds:ITHE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION INRENDERING ITS DECISION REVERSING THE DECISION OF THE REGIONALTRIAL COURT OF MANILA BRANCH 28, IN NOT TAKING INTOCONSIDERATION THE PROVISION OF SECTION 42, R.A. 4136 OF THE LANDTRANSPORTATION AND TRAFFIC CODE.IITHE DECISION OF THE COURT OF APPEALS IS CONTRARY TO THE

EVIDENCE ON RECORD ADDUCED IN THE TRIAL ON THE MERIT IN CIVILCASE NO. 92-61987.14The petitioners insist that Amores must have heard the trains whistle andheeded the warning but, noting that the train was still a distance away andmoving slowly, he must have calculated that he could beat it to the otherside of the track before the train would arrive at the intersection. Thepetitioners likewise add that the train was railroad-worthy and that itsdefective speedometer did not affect the trains operation. Lastly, theyinsist that evidence showed sufficient warning signs strategically installed at

the crossing to alert both motorists and pedestrians.Respondents, on the other hand, argue that the cause of the accident waspetitioners carelessness, imprudence and laxity in failing to provide acrossing bar and keeper at the Kahilum II railway intersection. Consideringthat Kahilum II Street is in the middle of a thickly populated squattersarea, and many pedestrians cross the railroad track, notwithstanding thefact that it is a public street and a main thoroughfare utilized in going toHerran Street, the presence of adequate warning signals would haveprevented the untimely death of Amores. Another crucial point raised by the

respondents is the manner in which Borja applied the brakes of the trainonly when the locomotive was already very near Amores car, as admittedby witness Querimit. Finally, respondents claim that Borjas failure to blowthe locomotives horn, pursuant to the usual practice of doing the same 100meters before reaching the Kahilum II crossing point is an earmark ofrecklessness on the part of the petitioners.The petition must fail.


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The only issue to be resolved in the present case is whether the appellatecourt was correct in ascribing negligence on the part of the petitioners. Itwas ascertained beyond quandary that the proximate cause of the collisionis the negligence and imprudence of the petitioner PNR and its locomotivedriver, Borja, in operating the passenger train.As the action is predicated on negligence, the relevant provision is Article

2176 of the New Civil Code, which states that:Whoever by act or omission causes damage to another, there being fault ornegligence, is obliged to pay for the damage done. Such fault or negligence,if there was no pre-existing contractual relation between the parties, iscalled quasi-delict and is governed by the provisions of this chapter.We have thoroughly reviewed the records of the case and we find no cogentreason to reverse the appellate courts decision. Negligence has beendefined as "the failure to observe for the protection of the interests ofanother person that degree of care, precaution, and vigilance which the

circumstances justly demand, whereby such other person suffers injury."

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Using the aforementioned philosophy, it may be reliably concluded thatthere is no hard and fast rule whereby such degree of care and vigilance iscalibrated; it is dependent upon the circumstances in which a person findshimself. All that the law requires is that it is perpetually compelling upon aperson to use that care and diligence expected of sensible men undercomparable circumstances.16We hold that the petitioners were negligent when the collision took place.The transcript of stenographic notes reveals that the train was running at a

fast speed because notwithstanding the application of the ordinary andemergency brakes, the train still dragged the car some distance away fromthe point of impact. Evidence likewise unveils the inadequate precautionstaken by petitioner PNR to forewarn the public of the impending danger.Aside from not having any crossing bar, no flagman or guard to man theintersection at all times was posted on the day of the incident. A reliablesignaling device in good condition, not just a dilapidated "Stop, Look andListen" signage because of many years of neglect, is needed to give noticeto the public. It is the responsibility of the railroad company to use

reasonable care to keep the signal devices in working order. Failure to do sowould be an indication of negligence.As held in the case of Philippine National Railway v. Brunty,17it may broadlybe stated that railroad companies owe to the public a duty of exercising areasonable degree of care to avoid injury to persons and property atrailroad crossings, which duties pertain both to the operation of trains andto the maintenance of the crossings. Moreover, every corporationconstructing or operating a railway shall make and construct at all pointswhere such railway crosses any public road, good, sufficient, and safe

crossings, and erect at such points, at sufficient elevation from such road asto admit a free passage of vehicles of every kind, a sign with large anddistinct letters placed thereon, to give notice of the proximity of the railway,and warn persons of the necessity of looking out for trains.18The failure ofthe PNR to put a cross bar, or signal light, flagman or switchman, orsemaphore is evidence of negligence and disregard of the safety of the


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public, even if there is no law or ordinance requiring it, because publicsafety demands that said device or equipment be installed.The petitioners insist that a train has a right-of-way in a railroad crossingunder the existing laws. They derive their theory from Section 42 (d),Article III of R.A. 4136, otherwise known as the Land Transportation andTraffic Code, which states that:

The driver of a vehicle upon a highway shall bring to a full stop such vehiclebefore traversing any "through highway" or railroad crossing: Provided,That when it is apparent that no hazard exists, the vehicle may be sloweddown to five miles per hour instead of bringing it to a full stop.They claim that motorists are enjoined by law to stop, look and listen beforecrossing railroad tracks and that a heavier responsibility rests upon themotorists in avoiding accidents at level crossings.It is true that one driving an automobile must use his faculties of seeingand hearing when nearing a railroad crossing.1wphi1 However, the

obligation to bring to a full stop vehicles moving in public highways beforetraversing any "through street" only accrues from the time the said"through street" or crossing is so designated and sign-posted. From therecords of the case, it can be inferred that Amores exercised all thenecessary precautions required of him as to avoid injury to himself and toothers.1wphi1The witnesses testimonies showed that Amores slackenedhis speed, made a full stop, and then proceeded to cross the tracks whenhe saw that there was no impending danger to his life. Under thesecircumstances, we are convinced that Amores did everything, with absolute

care and caution, to avoid the collision.It is settled that every person or motorist crossing a railroad track shoulduse ordinary prudence and alertness to determine the proximity of a trainbefore attempting to cross. We are persuaded that the circumstances werebeyond the control of Amores for no person would sacrifice his precious lifeif he had the slightest opportunity to evade the catastrophe. Besides, theauthority in this jurisdiction is that the failure of a railroad company toinstall a semaphore or at the very least, to post a flagman or watchman towarn the public of the passing train amounts to negligence.191wphi1

In view of the foregoing, We will now discuss the liability of petitioner PNR.Article 218020of the New Civil Code discusses the liability of the employeronce negligence or fault on the part of the employee has been established.The employer is actually liable on the assumption of juris tantum that theemployer failed to exercise diligentissimi patris families inthe selection and supervision of its employees. The liability is primary andcan only be negated by showing due diligence in the selection andsupervision of the employee, a factual matter that has not beendemonstrated.21 Even the existence of hiring procedures and supervisory

employees cannot be incidentally invoked to overturn the presumption ofnegligence on the part of the employer.22WHEREFORE, the petition is DENIED. The Decision of the Court of Appealsdated March 31, 2003 in CA-G.R. CV No. 54906 is hereby AFFIRMED.SO ORDERED.


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G.R. No. 171636 April 7, 2009NORMAN A. GAID, Petitioner,vs.PEOPLE OF THE PHILIPPINES,Respondent.D E C I S I O NTINGA, J.:

Before the Court is a petition for review on certiorari

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assailing the 12 July2005 Decision2 of the Court of Appeals and its subsequent Resolution3denying petitioners motion for reconsideration.Petitioner Norman A. Gaid was charged with the crime of recklessimprudence resulting in homicide in an information which reads as follow:That on or about 12:00 high noon of October 25, 2001, infront of theLaguindingan National High School, Poblacion, Laguindingan, MisamisOriental, Philippines and within the jurisdiction of this Honorable Court, thesaid accused mentioned above while driving a passengers jeepney color

white bearing plate no. KVG-771 owned by barangay captain Levy Etom hasno precautionary measure to preempt the accident, did then and therewillfully, unlawfully and feloniously ran [sic] over Michael Dayata resultingof [sic] his untimely death as pronounced by the attending physician ofNorthern Mindanao Medical Center Hospital, Cagayan de Oro City.CONTRARY TO LAW.4Petitioner entered a not guilty plea. Thereafter, trial ensued.The antecedent facts are undisputed.At around 12:00 noon on 25 October 2001, petitioner was driving his

passenger jeepney along a two-lane road where the Laguindingan NationalHigh School is located toward the direction of Moog in Misamis Oriental. Hisjeepney was filled to seating capacity.5At the time several students werecoming out of the school premises.6 Meanwhile, a fourteen year-oldstudent, Michael Dayata (Dayata), was seen by eyewitness ArtmanBongolto (Bongolto) sitting near a store on the left side of the road. Fromwhere he was at the left side of the road, Dayata raised his left hand to flagdown petitioners jeepney7 which was traveling on the right lane of theroad.8 However, neither did petitioner nor the conductor, Dennis Mellalos

(Mellalos), saw anybody flagging down the jeepney to ride at that point.9

The next thing Bongalto saw, Dayatas feet was pinned to the rear wheel ofthe jeepney, after which, he laid flat on the ground behind the jeepney.10Another prosecution witness, Usaffe Actub (Actub), who was also situatedon the left side of the street but directly in front of the school gate, heard "astrong impact coming from the jeep sounding as if the driver forced toaccelerate in order to hurdle an obstacle."11Dayata was then seen lying onthe ground12and caught in between the rear tires.13Petitioner felt that theleft rear tire of the jeepney had bounced and the vehicle tilted to the right

side.14

Mellalos heard a shout that a boy was run over, prompting him to jump offthe jeepney to help the victim. Petitioner stopped and saw Mellalos carryingthe body of the victim.15 Mellalos loaded the victim on a motorcycle andbrought him to the hospital. Dayata was first brought to the LaguindinganHealth Center, but it was closed. Mellalos then proceeded to the El SalvadorHospital. Upon advice of its doctors, however, Dayata was brought to the


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Northern Mindanao Medical Center where he was pronounced dead onarrival.16Dr. Tammy Uy issued an autopsy report stating cranio-cerebral injuries asthe cause of death.17 She testified that the head injuries of Dayata couldhave been caused by having run over by the jeepney.18The Municipal Circuit Trial Court (MCTC) of Laguindingan19found petitioner

guilty beyond reasonable doubt of the crime charged. The lower court heldpetitioner negligent in his driving considering that the victim was draggedto a distance of 5.70 meters from the point of impact. He was also scoredfor "not stopping his vehicle after noticing that the jeepneys left rear tirejolted causing the vehicle to tilt towards the right."20 On appeal, theRegional Trial Court (RTC)21affirmed in toto the decision of the MCTC.The Court of Appeals affirmed the trial courts judgment with modification inthat it found petitioner guilty only of simple negligence resulting inhomicide.1avvphi1.zw+

The Court of Appeals exonerated petitioner from the charge of recklessimprudence resulting to homicide on the ground that he was not drivingrecklessly at the time of the accident. However, the appellate court stillfound him to be negligent when he failed "to promptly stop his vehicle tocheck what caused the sudden jotting of its rear tire."22In its 6 February 2006 Resolution, the Court of Appeals denied petitionersmotion for reconsideration.23Hence, the instant petition.Petitioner submits that the Court of Appeals erred in finding that "there is

(sic) absolutely lack of precaution on the part of the petitioner when hecontinued even after he had noticed that the left rear tire and the jeep tiltedto its right side."24 Petitioner stressed that he, in fact, stopped his jeepwhen its left rear tire bounced and upon hearing that somebody had beenran over.Moreover, petitioner asserts that the Court of Appeals committed a graveabuse of discretion in convicting him of the offense of simple negligenceresulting in homicide. Assuming arguendo that he failed to promptly stophis vehicle, petitioner maintains that no prudent man placed in the same

situation could have foreseen the vehicular accident or could have stoppedhis vehicle in time when its left rear tire bounced due to the followingreasons: (1) the victim was only a trespasser; (2) petitioners attention wasfocused on the road and the students outside the schools gate; and (3) thejeepney was fully loaded with passengers and cargoes and it was impossiblefor the petitioner to promptly stop his vehicle.25The Office of the Solicitor-General (OSG) maintained that petitioner wasnegligent when he continued to run towards the direction of Moog,Laguindingan, dragging the victim a few meters from the point of impact,

despite hearing that a child had been run over.26

The presence or absence of negligence on the part of petitioner isdetermined by the operative events leading to the death of Dayata whichactually comprised of two phases or stages. The first stage began whenDayata flagged down the jeepney while positioned on the left side of theroad and ended when he was run over by the jeepney. The second stage


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covered the span between the moment immediately after the victim wasrun over and the point when petitioner put the jeepney to a halt.During the first stage, petitioner was not shown to be negligent.Reckless imprudence consists of voluntarily doing or failing to do, withoutmalice, an act from which material damage results by reason of aninexcusable lack of precaution on the part of the person performing or

failing to perform such act.

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In Manzanares v. People,28 this Court convicted petitioner of the crime ofreckless imprudence resulting in multiple homicide and serious physicalinjuries when he was found driving the Isuzu truck very fast before itsmashed into a jeepney.29 Likewise, in Pangonorom v. People,30 a publicutility driver, who was driving very fast, failed to slow down and hit aswerving car. He was found negligent by this Court.In the instant case, petitioner was driving slowly at the time of the accident,as testified to by two eyewitnesses. Prosecution witness Actub affirmed this

fact on cross-examination, thus:ATTY. MACUA:(to the witness)Q Mr. Witness, when the passenger jeepney passed by the gate of theLaguindingan National High School, is it running slowly, am I correct?A Yes, he was running slowly.31The slow pace of the jeepney was seconded by Mellalos:Q You testified that you heard somebody outside from the vehicle shoutingthat a boy was ran over, am I correct?

A Yes, Sir.Q Now, before you heard that shouting, did you observe any motion fromthe vehicle?A The jeep was moving slowly and I noticed that there was something that[sic] the jeep a little bit bounced up as if a hump thats the time I heard ashout from outside.32Petitioner stated that he was driving at no more than 15 kilometers perhour.33It appears from the evidence Dayata came from the left side of the street.

Petitioner, who was driving the jeepney on the right lane, did not see thevictim flag him down. He also failed to see him go near the jeepney at theleft side. Understandably, petitioner was focused on the road ahead. InDayatas haste to board the jeep which was then running, his feet somehowgot pinned to the left rear tire, as narrated by Bongolto. Actub only sawDayata after he heard a strong impact coming from the jeep.With the foregoing facts, petitioner can not be held liable during the firststage. Specifically, he cannot be held liable for reckless imprudenceresulting in homicide, as found by the trial court. The proximate cause of

the accident and the death of the victim was definitely his own negligencein trying to catch up with the moving jeepney to get a ride.In the instant case, petitioner had exercised extreme precaution as hedrove slowly upon reaching the vicinity of the school. He cannot be faultedfor not having seen the victim who came from behind on the left side.However, the Court of Appeals found petitioner guilty of simple negligenceresulting in homicide for failing to stop driving at the time when he noticed


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the bouncing of his vehicle. Verily, the appellate court was referring to thesecond stage of the incident.Negligence has been defined as the failure to observe for the protection ofthe interests of another person that degree of care, precaution, andvigilance which the circumstances justly demand, whereby such otherperson suffers injury.34

The elements of simple negligence: are (1) that there is lack of precautionon the part of the offender; and (2) that the damage impending to becaused is not immediate or the danger is not clearly manifest.35The standard test in determining whether a person is negligent in doing anact whereby injury or damage results to the person or property of anotheris this: could a prudent man, in the position of the person to whomnegligence is attributed, foresee harm to the person injured as a reasonableconsequence of the course actually pursued? If so, the law imposes a dutyon the actor to refrain from that course or to take precautions to guard

against its mischievous results, and the failure to do so constitutesnegligence. Reasonable foresight of harm, followed by the ignoring of theadmonition born of this provision, is always necessary before negligencecan be held to exist.36In Philippine National Construction Corporation v. Court of Appeals,37 thepetitioner was the franchisee that operates and maintains the toll facilitiesin the North and South Luzon Toll Expressways. It failed to exercise therequisite diligence in maintaining the NLEX safe for motorists. The lightedcans and lane dividers on the highway were removed even as flattened

sugarcanes lay scattered on the ground. The highway was still wet from thejuice and sap of the flattened sugarcanes. The petitioner should haveforeseen that the wet condition of the highway would endanger motoristspassing by at night or in the wee hours of the morning.38Consequently, itwas held liable for damages.In an American case, Hernandez v. Lukas,39a motorist traveling within thespeed limit and did all was possible to avoid striking a child who was thensix years old only. The place of the incident was a neighborhood wherechildren were playing in the parkways on prior occasions. The court ruled

that it must be still proven that the driver did not exercise due care. Theevidence showed that the driver was proceeding in lawful manner within thespeed limit when the child ran into the street and was struck by the driversvehicle. Clearly, this was an emergency situation thrust upon the driver toosuddenly to avoid.In this case, the courts below zeroed in on the fact that petitioner did notstop the jeepney when he felt the bouncing of his vehicle, a circumstancewhich the appellate court equates with negligence. Petitioner contends thathe did not immediately stop because he did not see anybody go near his

vehicle at the time of the incident.40

Assuming arguendo that petitioner had been negligent, it must be shownthat his negligence was the proximate cause of the accident. Proximatecause is defined as that which, in the natural and continuous sequence,unbroken by any efficient, intervening cause, produces the injury, andwithout which the result would not have


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occurred.41 In order to establish a motorist's liability for the negligentoperation of a vehicle, it must be shown that there was a direct causalconnection between such negligence and the injuries or damagescomplained of. Thus, negligence that is not a substantial contributing factorin the causation of the accident is not the proximate cause of an injury.42The head injuries sustained by Dayata at the point of impact proved to be

the immediate cause of his death, as indicated in the post-mortemfindings.43His skull was crushed as a result of the accident. Had petitionerimmediately stopped the jeepney, it would still not have saved the life ofthe victim as the injuries he suffered were fatal.The evidence on record do not show that the jeepney dragged the victimafter he was hit and run over by the jeepney. Quite the contrary, theevidence discloses that the victim was not dragged at all. In fact, it is theother way around. Bongolto narrated that after the impact, he saw Dayataleft behind the jeepney.44 Actub saw Dayata in a prone position and

bleeding within seconds after impact.

45

Right after the impact, Mellalosimmediately jumped out of the jeepney and saw the victim lying on theground.46The distance of 5.70 meters is the length of space between thespot where the victim fell to the ground and the spot where the jeepneystopped as observed by the trial judge during the ocular inspection at thescene of the accident.47Moreover, mere suspicions and speculations that the victim could have livedhad petitioner stopped can never be the basis of a conviction in a criminalcase.48The Court must be satisfied that the guilt of the accused had been

proven beyond reasonable doubt.

49

Conviction must rest on nothing lessthan a moral certainty of the guilt of the accused. The overridingconsideration is not whether the court doubts the innocence of the accusedbut whether it entertains doubt as to his guilt.50Clearly then, the prosecution was not able to establish that the proximatecause of the victims death was petitioners alleged negligence, if at all,even during the second stage of the incident.If at all again, petitioners failure to render assistance to the victim wouldconstitute abandonment of ones victim punishable under Article 275 of the

Revised Penal Code. However, the omission is not covered by theinformation. Thus, to hold petitioner criminally liable under the provisionwould be tantamount to a denial of due process.Therefore, petitioner must be acquitted at least on reasonable doubt. Theaward of damages must also be deleted pursuant to Article 2179 of the CivilCode which states that when the plaintiffs own negligence was theimmediate and proximate cause of his injury, he cannot recover damages.WHEREFORE, the petition is GRANTED. The decision of the Court of Appealsdated 12 July 2005 is REVERSED and SET ASIDE. Petitioner Norman A. Gaid

is ACQUITTED of the crime of Simple Negligence Resulting in Homicide asfound by the Court of Appeals and of the charge of Reckless ImprudenceResulting in Homicide in Criminal Case No. 1937 of the MCTC ofLaguindingan, Misamis Oriental.SO ORDERED.


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G.R. No. L-40452 October 12, 1989GREGORIO GENOBIAGON, petitioner,vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,respondents.Mario D. Ortiz for petitioner.

GRIO-AQUINO, J.:This is a petition for review of the Court of Appeals' decision in CA-G.R. No.09949-CR, dated October 10, 1974, affirming the conviction of thepetitioner of the crime of homicide thru reckless imprudence.As found by the Court of Appeals, the facts of this case are:On December 31,1959, at about 7:30 o'clock in the evening, a rig driven byappellant bumped an old woman who was crossing T. Padilla St., Cebu City,at the right side of T. Padilla Market. The appellant's rig was followinganother at a distance of two meters. The old woman started to cross when

the first rig was approaching her, but as appellant's vehicle was going sofast not only because of the steep down-grade of the road, but also becausehe was trying to overtake the rig ahead of him, the appellant's rig bumpedthe old woman, who as a consequence, fell at the middle of the road. Theappellant continued to drive on, but a by-stander, one Vicente Mangyao,who just closed his store in market in order to celebrate the coming of theNew Year, and who saw the incident right before him, shouted at theappellant to stop. He ran after appellant when the latter refused to stop.Overtaking the appellant, Mangyao asked him why he bumped the old

woman and his answer was, 'it was the old woman that bumped him.' Theappellant went back to the place where the old woman was struck by hisrig. The old woman was unconscious, and the food and viands she wascarrying were scattered on her body. The victim was then loaded in a jeepand brought to the hospital where she died three hours later (Exh. C). Thefindings after an autopsy are as follows:Contusion with Hematoma Left, Frontal and Occipito-Parietal RegionasFracture Occipito-Parietal Bone Cerebral Hemorrhage.The deceased was an eighty-one-year old woman named Rita B. Cabrera.

(pp. 31-32, Rollo.)Petitioner was charged with homicide thru reckless imprudence in the Courtof First Instance of Cebu (Crim. Case No. V7855). The trial court foundpetitioner guilty of the felony charged and sentenced him to "suffer anindeterminate penalty of three (3) months of arresto mayor as minimum toone (1) year, one (1) month and eleven (11) days of prision correccional asmaximum, to indemnify the heirs of Rita Banzon Cabrera the sum of P6,000with subsidiary imprisonment in case of insolvency, not to exceed 1/3 of theprincipal penalty and to pay the costs" (p. 3, Appellant's Brief, p. 56, Rollo).

The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on October 10,1974,conviction of the accused but increased hiscivil liability to P12,000. The dispositive portion of its decision reads:WHEREFORE, finding no error in the judgment appealed from except in theamount of indemnity to be paid to the heirs of the deceased, Rita B.Cabrera, which is the sum of P6,000.00 with subsidiary imprisonment incase of insolvency which should be raised to P12,000.00 (People vs.


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Pantoja, G.R. No. L-18793, October 11, 1968, 25 SCRA 468) but withoutsubsidiary imprisonment in case of insolvency, the same should be, as it ishereby affirmed in all other respects with costs. (P. 37, Rollo.)After his motion for reconsideration of the Court of Appeals' decision wasdenied, he filed a petition for review in this Court, alleging that the Court ofAppeals erred:

1. in not finding that the reckless negligence of the victim was theproximate cause of the accident which led to her death;2. in not acquitting the petitioner on the ground of reasonable doubt; and3. in unjustly increasing the civil liability of the petitioner from P6,000.00 toP12,000.00, although the circumstances of the victim and the accused(petitioner) do not warrant such increase.It is quite evident that all the issues raised in the petition for review arefactual. Well-entrenched in our jurisprudence is the rule that findings of factof the trial court and the Court of Appeals are binding upon us (Bernardo

vs. Bernardo, 101 SCRA 351; Vda. De Roxas vs. IAC, 143 SCRA 77;Republic vs. IAC, 144 SCRA 705).The alleged contributory negligence of the victim, if any, does notexonerate the accused. "The defense of contributory negligence does notapply in criminal cases committed through reckless imprudence, since onecannot allege the negligence of another to evade the effects of his ownnegligence (People vs. Orbeta, CA-G.R. No. 321, March 29,1947)." (Peoplevs. Quinones, 44 O.G. 1520).The petitioner's contention that the Court of Appeals unjustly increased his

civil liability to P12,000, is devoid of merit. The prevailing jurisprudence infact provides that indemnity for death in homicide or murder is P30,000(People vs. De la Fuente, [1983]126 SCRA 518; People vs. Centeno, 130SCRA 198). Accordingly, the civil liability of the petitioner is increased toP30,000.WHEREFORE, the appealed decision is affirmed with modification as to thecivil liability of the petitioner which is hereby increased to P30,000. Costsagainst petitioner.SO ORDERED.

G.R. No. 1719 January 23, 1907M. H., RAKES, plaintiff-appellee,vs.THE ATLANTIC, GULF AND PACIFIC COMPANY,defendant-appellant.A. D. Gibbs for appellant.F. G. Waite, & Thimas Kepner for appellee.TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negrolaborers in the employment of the defendant, was at work transporting ironrails from a barge in the harbor to the company's yard near the malecon inManila. Plaintiff claims that but one hand car was used in this work. Thedefendant has proved that there were two immediately following oneanother, upon which were piled lengthwise seven rails, each weighing 560pounds, so that the ends of the rails lay upon two crosspieces or sills


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secured to the cars, but without side pieces or guards to prevent them fromslipping off. According to the testimony of the plaintiff, the men were eitherin the rear of the car or at its sides. According to that defendant, some ofthem were also in front, hauling by a rope. At a certain spot at or near thewater's edge the track sagged, the tie broke, the car either canted or upset,the rails slid off and caught the plaintiff, breaking his leg, which was

afterwards amputated at about the knee.This first point for the plaintiff to establish was that the accident happenedthrough the negligence of the defendant. The detailed description by thedefendant's witnesses of the construction and quality of the track provesthat if was up to the general stranded of tramways of that character, thefoundation consisting on land of blocks or crosspieces of wood, by 8 inchesthick and from 8 to 10 feet long laid, on the surface of the ground, uponwhich at a right angle rested stringers of the same thickness, but from 24to 30 feet in length. On the across the stringers the parallel with the blocks

were the ties to which the tracks were fastened. After the road reached thewater's edge, the blocks or crosspieces were replaced with pilling, cappedby timbers extending from one side to the other. The tracks were eachabout 2 feet wide and the two inside rails of the parallel tracks about 18inches apart. It was admitted that there were no side pieces or guards onthe car; that where no ends of the rails of the track met each other andalso where the stringers joined, there were no fish plates. the defendanthas not effectually overcome the plaintiff's proof that the joints between therails were immediately above the joints between the underlying stringers.

The cause of the sagging of the tracks and the breaking of the tie, whichwas the immediate occasion of the accident, is not clear in the evidence,but is found by the trial court and is admitted in the briefs and in theargument to have been the dislodging of the crosspiece or piling under thestringer by the water of the bay raised by a recent typhoon. Thesuperintendent of the company attributed it to the giving way of the blocklaid in the sand. No effort was made to repair the injury at the time of theoccurrence. According to plaintiffs witnesses, a depression of the track,varying from one half inch to one inch and a half, was therafter apparent to

the eye, and a fellow workman of the plaintiff swears that the day beforethe accident he called the attention of McKenna, the foreman, to it andasked by simply straightening out the crosspiece, resetting the block underthe stringer and renewing the tie, but otherwise leaving the very sametimbers as before. It has not proven that the company inspected the trackafter the typhoon or had any proper system of inspection.In order to charge the defendant with negligence, it was necessary to showa breach of duty on its part in failing either to properly secure the load oniron to vehicles transporting it, or to skillfully build the tramway or to

maintain it in proper condition, or to vigilantly inspect and repair theroadway as soon as the depression in it became visible. It is upon thefailure of the defendant to repair the weakened track, after notice of itscondition, that the judge below based his judgment.This case presents many important matters for our decision, and firstamong them is the standard of duty which we shall establish in ourjurisprudence on the part of employees toward employees.


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The lack or the harshness of legal rules on this subject has led manycountries to enact designed to put these relations on a fair basis in the formof compensation or liability laws or the institution of insurance. In theabsence of special legislation we find no difficulty in so applying the generalprinciples of our law as to work out a just result.Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governedby the provisions of the Penal Code.And article 568 of the latter code provides:He who shall execute through reckless negligence an act that if done withmalice would constitute a grave crime, shall be punished.And article 590 provides that the following shall be punished:4. Those who by simple imprudence or negligence, without committing anyinfraction of regulations, shall cause an injury which, had malice intervened,would have constituted a crime or misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers forthe faults of their servants and representatives is declared to be civil andsubsidiary in its character.It is contented by the defendant, as its first defense to the action, that thenecessary conclusion from these collated laws is that the remedy forinjuries through negligence lies only in a criminal action in which the officialcriminally responsible must be made primarily liable and his employer heldonly subsidiarily to him. According to this theory the plaintiff should haveprocured the arrest of the representative of the company accountable for

not repairing the tract, and on his prosecution a suitable fine should havebeen imposed, payable primarily by him and secondarily by his employer.This reasoning misconceived the plan of the Spanish codes upon thissubject. Article 1093 of the Civil Code makes obligations arising from faultsor negligence notpunished by the law, subject to the provisions of Chapter11 of Title XVI. Section 1902 of that chapter reads:A person who by an act or omission causes damage to another when thereis fault or negligence shall be obliged to repair the damage so done.SEC. 1903. The obligation imposed by the preceding article is demandable,

not only for personal acts and omissions, but also for those of the personsfor whom they should be responsible.The father, and on his death or incapacity, the mother, is liable for thedamages caused by the minors who live with them.xxx xxx xxxOwners or directors of an establishment or enterprise are equally liable forthe damages caused by their employees in the service of the branches inwhich the latter may be employed or in the performance of their duties.xxx xxx xxx

The liability referred to in this article shall cease when the personsmentioned therein prove that they employed all the diligence of a goodfather of a family to avoid the damages.As an answer to the argument urged in this particular action it may besufficient to point out that nowhere in our general statutes is the employerpenalized for failure to provide or maintain safe appliances for his workmen.His obligation therefore is one "not punished by the law " and falls under


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civil rather than criminal jurisprudence. But the answer may be a broaderone. We should be reluctant, under any conditions, to adopt a forcedconstruction of these scientific codes, such as is proposed by the defendant,that would rob some of these articles of effect, would shut out litigants theirwill from the civil courts, would make the assertion of their rightsdependent upon the selection for prosecution of the proper criminal

offender, and render recovery doubtful by reason of the strict rules of proofprevailing in criminal actions. Even if these articles had always stood alone,such a construction would be unnecessary, but clear light is thrown upontheir meaning by the provisions of the Law of Criminal Procedure of Spain(Ley de Enjuiciamiento Criminal), which, though n ever in actual force inthese Islands, was formerly given a suppletory or explanatory effect. Underarticle 111 of this law, both classes of action, civil and criminal, might beprosecuted jointly or separately, but while the penal action was pending thecivil was suspended. According to article 112, the penal action once started,

the civil remedy should be sought therewith, unless it had been waived bythe party injured or been expressly reserved by him for civil proceedings forthe future. If the civil action alone was prosecuted, arising out of a crimethat could be enforced by only on private complaint, the penal actionthereunder should be extinguished. These provisions are in harmony withthose of articles 23 and 133 of our Penal Code on the same subject.An examination of this topic might be carried much further, but the citationsof these articles suffices to show that the civil liability was not intended tobe merged in the criminal nor even to be suspended thereby, except as

expressly provided by law. Where an individual is civilly liable for anegligent act or omission, it is not required that the inured party shouldseek out a third person criminally liable whose prosecution must be acondition precedent to the enforcement of the civil right.Under article 20 of the Penal Code the responsibility of an employer may beregarded as subsidiary in respect of criminal actions against his employeesonly while they are process of prosecution, or in so far as they determinatethe existence of the criminal act from which liability arises, and hisobligation under the civil law and its enforcement in the civil courts is not

barred thereby unless by election of the injured person. Inasmuch as nocriminal in question, the provisions of the Penal Code can not affect thisaction. This construction renders it unnecessary to finally determine herewhether this subsidiary civil liability in penal actions survived the laws thatfully regulated it or has been abrogated by the American civil and criminalprocedure now in force in the Philippines.The difficulty in construing the articles of the code above cited in this caseappears from the briefs before us to have arisen from the interpretation ofthe words of article 1093, "fault or negligence not punished by law," as

applied to the comprehensive definition of offenses in articles 568 and 590of the Penal Code. It has been shown that the liability of an employerarising out of his relation to his employee who is the offender is not to beregarded as derived from negligence punished by the law, within themeaning of articles 1092 and 1093. More than this, however, it can not besaid to fall within the class of acts unpunished by the law, the consequencesof which are regulated by articles 1902 and 1903 of the Civil Code. The acts


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to which these articles are applicable are understood to be those andgrowing out of preexisting duties of the parties to one another. But wererelations already formed give rise to duties, whether springing fromcontract or quasi contract, then breaches of those duties are subject toarticles 1101, 1103, and 1104, of the same code. A typical application ofthe distinction may be found in the consequences of a railway accident due

to defective machinery supplied by the employer. His liability to hisemployee would arise out of the contract of employment, that to thepassengers out of the contract for passage. while that to that injuredbystander would originate in the negligent act itself. This distinction is thusclearly set forth by Manresa in his commentary on article 1093.We are with reference to such obligations, that culpa, or negligence, maybe understood in two difference senses; either as culpa, substantive andindependent, which on account of its origin arises in an obligation betweentwo persons not formerly bound by any other obligation; or as an incident

in the performance of an obligation; or as already existed, which can not bepresumed to exist without the other, and which increases the liabilityarising from the already exiting obligation.Of these two species of culpa the first one mentioned, existing by itself,may be also considered as a real source of an independent obligation, and,as chapter 2, title 16 of this book of the code is devoted to it, it is logical topresume that the reference contained in article 1093 is limited thereto andthat it does not extend to those provisions relating to the other species ofculpa (negligence), the nature of which we will discuss later. (Vol. 8, p. 29.)

And in his commentary on articles 1102 and 1104 he says that these twospecies of negligence may be somewhat inexactly described as contractualand extra-contractual, the letter being the culpa aquiliana of the Roman lawand not entailing so strict an obligation as the former. This terminology isunreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section,Chapter XI, Article II, No. 12), and the principle stated is supported bedecisions of the supreme court of Spain, among them those of November20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75Jurisprudencia Civil, No. 182). The contract is one for hire and not one of

mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)Spanish Jurisprudencia prior to the adoption of the Working Men's AccidentLaw of January 30, 1900, throws uncertain light on the relation betweenmaster and workman. Moved by the quick industrial development of theirpeople, the courts of France early applied to the subject the principlescommon to the law of both countries, which are lucidly discussed by theleading French commentators.The original French theory, resting the responsibility of owners of industrialenterprises upon articles 1382, 1383, and 1384 of the Code Napoleon,

corresponding in scope to articles 1902 and 1903 of the Spanish Code, soonyielded to the principle that the true basis is the contractual obligation ofthe employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)Later the hardships resulting from special exemptions inserted in contractsfor employment led to the discovery of a third basis for liability in an articleof he French Code making the possessor of any object answerable fordamage done by it while in his charge. Our law having no counterpart of


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this article, applicable to every kind of object, we need consider neither thetheory growing out of it nor that of "professional risk" more recentlyimposed by express legislation, but rather adopting the interpretation of ourCivil Code above given, find a rule for this case in the contractualobligation. This contractual obligation, implied from the relation andperhaps so inherent in its nature to be invariable by the parties, binds the

employer to provide safe appliances for the use of the employee, thusclosely corresponding to English and American Law. On these principles itwas the duty of the defendant to build and to maintain its track inreasonably sound condition, so as to protect its workingmen fromunnecessary danger. It is plain that in one respect or the other it failed inits duty, otherwise the accident could not have occurred; consequently thenegligence of the defendant is established.Another contention of the defense is that the injury resulted to the plaintiffas a risk incident to his employment and, as such, one assumed by him. It

is evident that this can not be the case if the occurrence was due to thefailure to repair the track or to duly inspect, it for the employee is notpresumed to have stipulated that the employer might neglect his legal duty.Nor may it be excused upon the ground that the negligence leading to theaccident was that of a fellow-servant of the injured man. It is not apparentto us that the intervention of a third person can relieve the defendant fromthe performance of its duty nor impose upon the plaintiff the consequencesof an act or omission not his own. Sua cuique culpa nocet. This doctrine,known as "the fellow-servant, rule," we are not disposed to introduce into

our jurisprudence. Adopted in England by Lord Abinger in the case ofPrescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since beeneffectually abrogated by "the Employers' Liability Acts" and the"Compensation Law." The American States which applied it appear to begradually getting rid of it; for instance, the New York State legislature of1906 did away with it in respect to railroad companies, and had in hand ascheme for its total abolition. It has never found place in the civil law ofcontinental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, andvol. 15, 1895, same title, 804. Also more recent instances in Fuzier-

Herman, Title Responsibilite Civile, 710.)The French Cour de Cassation clearly laid down the contrary principle in itsjudgment of June 28, 1841, in the case of Reygasse, and has since adheredto it.The most controverted question in the case is that of the negligence of theplaintiff, contributing to the accident, to what extent it existed in fact andwhat legal effect is to be given it. In two particulars is he charged withcarelessness:First. That having noticed the depression in the track he continued his

work; andSecond. That he walked on the ends of the ties at the side of the carinstead of along the boards, either before or behind it.As to the first point, the depression in the track night indicate either aserious or a rival difficulty. There is nothing in the evidence to show thatthe plaintiff did or could see the displaced timber underneath the sleeper.The claim that he must have done so is a conclusion drawn from what is


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assumed to have been a probable condition of things not before us, ratherthan a fair inference from the testimony. While the method of constructionmay have been known to the men who had helped build the road, it wasotherwise with the plaintiff who had worked at this job less than two days.A man may easily walk along a railway without perceiving a displacement ofthe underlying timbers. The foreman testified that he knew the state of the

track on the day of the accident and that it was then in good condition, andone Danridge, a witness for the defendant, working on the same job, sworethat he never noticed the depression in the track and never saw any badplace in it. The sagging of the track this plaintiff did perceive, but that wasreported in his hearing to the foreman who neither promised nor refused torepair it. His lack of caution in continuing at his work after noticing theslight depression of the rail was not of so gross a nature as to constitutenegligence, barring his recovery under the severe American rule. On thispoint we accept the conclusion of the trial judge who found as facts that

"the plaintiff did not know the cause of the one rail being lower than thenother" and "it does not appear in this case that the plaintiff knew before theaccident occurred that the stringers and rails joined in the same place."Were we not disposed to agree with these findings they would,nevertheless, be binding upon us, because not "plainly and manifestlyagainst the weight of evidence," as those words of section 497, paragraph 3of the Code of Civil Procedure were interpreted by the Supreme Court of theUnited States in the De la Rama case (201 U. S., 303).In respect of the second charge of negligence against the plaintiff, the

judgment below is not so specific. While the judge remarks that theevidence does not justify the finding that the car was pulled by means of arope attached to the front end or to the rails upon it, and further that thecircumstances in evidence make it clear that the persons necessary tooperate the car could not walk upon the plank between the rails and that,therefore, it was necessary for the employees moving it to get hold upon itas best they could, there is no specific finding upon the instruction given bythe defendant to its employees to walk only upon the planks, nor upon thenecessity of the plaintiff putting himself upon the ties at the side in order to

get hold upon the car. Therefore the findings of the judge below leave theconduct of the plaintiff in walking along the side of the loaded car, upon theopen ties, over the depressed track, free to our inquiry.While the plaintiff and his witnesses swear that not only were they notforbidden to proceed in this way, but were expressly directed by theforeman to do so, both the officers of the company and three of theworkmen testify that there was a general prohibition frequently madeknown to all the gang against walking by the side of the car, and theforeman swears that he repeated the prohibition before the starting of this

particular load. On this contradiction of proof we think that thepreponderance is in favor of the defendant's contention to the extent of thegeneral order being made known to the workmen. If so, the disobedience ofthe plaintiff in placing himself in danger contributed in some degree to theinjury as a proximate, although not as its primary cause. This conclusionpresents sharply the question, What effect is to be given such an act of


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contributory negligence? Does it defeat a recovery, according to theAmerican rule, or is it to be taken only in reduction of damages?While a few of the American States have adopted to a greater or less extentthe doctrine of comparative negligence, allowing a recovery by a plaintiffwhose own act contributed to his injury, provided his negligence was slightas compared with that of the defendant, and some others have accepted

the theory of proportional damages, reducing the award to a plaintiff inproportion to his responsibility for the accident, yet the overwhelmingweight of adjudication establishes the principle in American jurisprudencethat any negligence, however slight, on the part of the person injured whichis one of the causes proximately contributing to his injury, bars hisrecovery. (English and American Encyclopedia of law, Titles "ComparativeNegligence" and Contributory Negligence.")In Grant Trunk Railway Company vs.Ives (144 U. S., 408, at page 429) theSupreme Court of the United States thus authoritatively states the present

rule of law:Although the defendant's' negligence may have been the primary cause ofthe injury complained of, yet an action for such injury can not bemaintained if the proximate and immediate cause of the injury can betraced to the want of ordinary care and caution in the person injured;subject to this qualification, which has grown up in recent years (havingbeen first enunciated in Davies vs. Mann, 10 M. & W., 546) that thecontributory negligence of the party injured will not defeat the action if it beshown that the defendant might, by the exercise of reasonable care and

prudence, have avoided the consequences of the injured party's negligence.There are may cases in the supreme court of Spain in which the defendantwas exonerated, but when analyzed they prove to have been decided eitherupon the point that he was not negligent or that the negligence of theplaintiff was the immediate cause of the casualty or that the accident wasdue to casus fortuitus. Of the first class in the decision of January 26, 1887(38Jurisprudencia Criminal, No. 70), in which a railway employee, standingon a car, was thrown therefrom and killed by the shock following thebacking up of the engine. It was held that the management of the train and

engine being in conformity with proper rules of the company, showed nofault on its part.Of the second class are the decision of the 15th of January, the 19th ofFebruary, and the 7th of March, 1902, stated in Alcubilla's Index of thatyear; and of the third class the decision of the 4th of June, 1888 (64Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam bythe logs of the defendant impelled against it by the Tajo River, was helddue to a freshet as a fortuitous cause.The decision of the 7th of March, 1902, on which stress has been laid,

rested on two bases, one, that the defendant was not negligent, becauseexpressly relieved by royal order from the common obligation imposed bythe police law of maintaining a guard at the road crossing; the other,because the act of the deceased in driving over level ground withunobstructed view in front of a train running at speed, with the enginewhistle blowing was the determining cause of the accident. It is plain thatthe train was doing nothing but what it had a right to do and that the only


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fault lay with the injured man. His negligence was not contributory, it wassole, and was of such an efficient nature that without it no catastrophecould have happened.On the other hand, there are many cases reported in which it seems plainthat the plaintiff sustaining damages was not free from contributorynegligence; for instance, the decision of the 14th of December, 1894 (76

Jurisprudencia Civil, No. 134), in which the owner of a building was heldliable for not furnishing protection to workmen engaged in hanging outflags, when the latter must have perceived beforehand the dangerattending the work.None of those cases define the effect to be given the negligence of aplaintiff which contributed to his injury as one of its causes, though not theprincipal one, and we are left to seek the theory of the civil law in thepractice of other countries.In France in the case of Marquant, August 20, 1879, the cour de cassation

held that the carelessness of the victim did not civilly relieve the personwithout whose fault the accident could not have happened, but that thecontributory negligence of the injured man had the effect only of reducingthe damages. The same principle was applied in the case of Recullet,November 10, 1888. and that of Laugier of the 11th of November, 1896.(Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor arecitations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895,Title Responsibilite, 193, 198).In the Canadian Province of Quebee, which has retained for the most part

the French Civil Law, now embodied in a code following the Code Napoleon,a practice in accord with that of France is laid down in many cases collectedin the annotations to article 1053 of the code edited by Beauchamps, 1904.One of these is Luttrell vs.Trottier, reported in La Revue de Jurisprudence,volume 6, page 90, in which the court of Kings bench, otherwise known asthe court of appeals, the highest authority in the Dominion of Canada onpoints of French law, held that contributory negligence did not exoneratethe defendants whose fault had been the immediate cause of the accident,but entitled him to a reduction of damages. Other similar cases in the

provincial courts have been overruled by appellate tribunals made up ofcommon law judges drawn from other provinces, who have preferred toimpose uniformally throughout the Dominion the English theory ofcontributory negligence. Such decisions throw no light upon the doctrines ofthe civil law. Elsewhere we find this practice embodied in legislation; forinstance, section 2 of article 2398 of the Code of Portugal reads as follows:If in the case of damage there was fault or negligence on the part of theperson injured or in the part of some one else, the indemnification shall bereduced in the first case, and in the second case it shall be appropriated in

proportion to such fault or negligence as provided in paragraphs 1 and 2 ofsection 2372.And in article 1304 of the Austrian Code provides that the victim who ispartly changeable with the accident shall stand his damages in proportion tohis fault, but when that proportion is incapable of ascertainment, he shallshare the liability equally with the person principally responsible. Theprinciple of proportional damages appears to be also adopted in article 51 of


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the Swiss Code. Even in the United States in admirality jurisdictions, whoseprinciples are derived from the civil law, common fault in cases of collisionhave been disposed of not on the ground of contradictor negligence, but onthat of equal loss, the fault of the one part being offset against that of theother. (Ralli vs.Troop, 157 U. S. 386; 97.)The damage of both being added together and the sum equally divided, a

decree is entered in favor of the vessel sustaining the greater loss againstthe other for the excess of her damages over one-half of the aggregatesum. (The Manitoba, 122 U. S., 97)Exceptional practice appears to prevail in maritime law in otherjurisdictions. The Spanish Code of Commerce, article 827, makes eachvessel for its own damage when both are the fault; this provision restrictedto a single class of the maritime accidents, falls for short of a recognition ofthe principle of contributory negligence as understood in American Law,with which, indeed, it has little in common. This is a plain from other

articles of the same code; for instance, article 829, referring to articles 826,827, and 828, which provides: "In the cases above mentioned the civilaction of the owner against the person liable for the damage is reserved, aswell as the criminal liability which may appear."The rule of the common law, a hard and fast one, not adjustable withrespects of the faults of the parties, appears to have grown out the originalmethod of trial by jury, which rendered difficult a nice balancing ofresponsibilities and which demanded an inflexible standard as a safeguardagainst too ready symphaty for the injured. It was assumed that an exact

measure of several concurring faults was unattainable.The reason why, in cases of mutual concurring negligence, neither partycan maintain an action against the other, is, not the wrong of the one is setoff against the wrong of the other; it that the law can not measure howmuch of the damage suffered is attributable to the plaintiff's own fault. If hewere allowed to recover, it might be that he would obtain from the otherparty compensation for hiss own misconduct. (Heil vs.Glanding, 42 Penn.St. Rep., 493, 499.)The parties being mutually in fault, there can be no appointment of

damages. The law has no scales to determine in such cases whosewrongdoing weighed most in the compound that occasioned the mischief.(Railroad vs.Norton, 24 Penn. St. 565, 469.)Experience with jury trials in negligence cases has brought American courtsto review to relax the vigor of the rule by freely exercising the power ofsetting aside verdicts deemed excessive, through the device of grantingnew trials, unless reduced damages are stipulated for, amounting to apartial revision of damages by the courts. It appears to us that the controlby the court of the subject matter may be secured on a moral logical basis

and its judgment adjusted with greater nicety to the merits of the litigantsthrough the practice of offsetting their respective responsibilities. In thecivil law system the desirable end is not deemed beyond the capacity of itstribunals.Whatever may prove to be the doctrine finally adopted in Spain or in othercountries under the stress and counter stress of novel schemers oflegislation, we find the theory of damages laid down in the judgment the


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most consistent with the history and the principals of our law in theseIslands and with its logical development.Difficulty seems to be apprehended in deciding which acts of the injuredparty shall be considered immediate causes of the accident. The test issimple. Distinction must be between the accident and the injury, betweenthe event itself, without which there could have been no accident, and

those acts of the victim not entering into it, independent of it, butcontributing under review was the displacement of the crosspiece or thefailure to replace it. this produced the event giving occasion for damages that is, the shinking of the track and the sliding of the iron rails. To thisevent, the act of the plaintiff in walking by the side of the car did notcontribute, although it was an element of the damage which came tohimself. Had the crosspiece been out of place wholly or partly thorough hisact of omission of duty, the last would have been one of the determiningcauses of the event or accident, for which he would have been responsible.

Where he contributes to the principal occurrence, as one of its determiningfactors, he can not recover. Where, in conjunction with the occurrence, hecontributes only to his own injury, he may recover the amount that thedefendant responsible for the event should pay for such injury, less a sumdeemed a suitable equivalent for his own imprudence.Accepting, though with some hesitation, the judgment of the trial court,fixing the damage incurred by the plaintiff at 5,000 pesos, the equivalent of2,500 dollars, United States money, we deduct therefrom 2,500 pesos, theamount fairly attributable to his negligence, and direct judgment to be

entered in favor of the plaintiff for the resulting sum of 2,500 pesos, withcost of both instances, and ten days hereafter let the case be remanded tothe court below for proper action. So ordered.

G.R. No. 129792 December 21, 1999JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPEand ELISA PANELO, petitioners,vs.

HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR andCRISELDA R. AGUILAR, respondents.

DAVIDE, JR., J.:In this petition for review on certiorariunder Rule 45 of the Rules of Court,petitioners seek the reversal of the 17 June 1996 decision 1of the Court ofAppeals in C.A. G.R. No. CV 37937 and the resolution 2 denying theirmotion for reconsideration. The assailed decision set aside the 15 January1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in

Civil Case No. 7119 and ordered petitioners to pay damages and attorney'sfees to private respondents Conrado and Criselda (CRISELDA) Aguilar.Petitioner Jarco Marketing Corporation is the owner of Syvel's DepartmentStore, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Paneloare the store's branch manager, operations manager, and supervisor,respectively. Private respondents are spouses and the parents of ZhienethAguilar (ZHIENETH).


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In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2ndfloor of Syvel's Department Store, Makati City. CRISELDA was signing hercredit card slip at the payment and verification counter when she felt asudden gust of wind and heard a loud thud. She looked behind her. Shethen beheld her daughter ZHIENETH on the floor, her young body pinned bythe bulk of the store's gift-wrapping counter/structure. ZHIENETH was

crying and screaming for help. Although shocked, CRISELDA was quick toask the assistance of the people around in lifting the counter and retrievingZHIENETH from the floor. 3ZHIENETH was quickly rushed to the Makati Medical Center where she wasoperated on. The next day ZHIENETH lost her speech and thereaftercommunicated with CRISELDA by writing on a magic slate. The injuries shesustained took their toil on her young body. She died fourteen (14) daysafter the accident or on 22 May 1983, on the hospital bed. She was sixyears old. 4

The cause of her death was attributed to the injuries she sustained. Theprovisional medical certificate 5 issued by ZHIENETH's attending doctordescribed the extent of her injuries:Diagnoses:1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver3. Rupture, stomach, anterior & posterior walls4. Complete transection, 4th position, duodenum5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severeCRITICALAfter the burial of their daughter, private respondents demanded uponpetitioners the reimbursement of the hospitalization, medical bills and wakeand funeral expenses 6which they had incurred. Petitioners refused to pay.Consequently, private respondents filed a complaint for damages, docketedas Civil Case No. 7119 wherein they sought the payment of P157,522.86 foractual damages, P300,000 for moral damages, P20,000 for attorney's feesand an unspecified amount for loss of income and exemplary damages.

In their answer with counterclaim, petitioners denied any liability for theinjuries and consequent death of ZHIENETH. They claimed that CRISELDAwas negligent in exercising care and diligence over her daughter by allowingher to freely roam around in a store filled with glassware and appliances.ZHIENETH too, was guilty of contributory negligence since she climbed thecounter, triggering its eventual collapse on her. Petitioners also emphasizedthat the counter was made of sturdy wood with a strong support; it neverfell nor collapsed for the past fifteen years since its construction.Additionally, petitioner Jarco Marketing Corporation maintained that it

observed the diligence of a good father of a family in the selection,supervision and control of its employees. The other petitioners likewiseraised due care and diligence in the performance of their duties andcountered that the complaint was malicious for which they sufferedbesmirched reputation and mental anguish. They sought the dismissal ofthe complaint and an award of moral and exemplary damages andattorney's fees in their favor.


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had been in existence for several years without any prior accident and wasdeliberately placed at a corner to avoid such accidents. Truth to tell, theyacted without fault or negligence for they had exercised due diligence onthe matter. In fact, the criminal case 10 for homicide through simplenegligence filed by private respondents against the individual petitionerswas dismissed; a verdict of acquittal was rendered in their favor.

The Court of Appeals, however, decided in favor of private respondents andreversed the appealed judgment. It found that petitioners were negligent inmaintaining a structurally dangerous counter. The counter was shaped likean inverted "L" 11with a top wider than the base. It was top heavy and theweight of the upper portion was neither evenly distributed nor supported byits narrow base. Thus, the counter was defective, unstable and dangerous;a downward pressure on the overhanging portion or a push from the frontcould cause the counter to fall. Two former employees of petitioners hadalready previously brought to the attention of the management the danger

the counter could cause. But the latter ignored their concern. The Court ofAppeals faulted the petitioners for this omission, and concluded that theincident that befell ZHIENETH could have been avoided had petitionersrepaired the defective counter. It was inconsequential that the counter hadbeen in use for some time without a prior incident.The Court of Appeals declared that ZHIENETH, who was below seven (7)years old at the time of the incident, was absolutely incapable of negligenceor other tort. It reasoned that since a child under nine (9) years could notbe held liable even for an intentional wrong, then the six-year old

ZHIENETH could not be made to account for a mere mischief or recklessact. It also absolved CRISELDA of any negligence, finding nothing wrong orout of the ordinary in momentarily allowing ZHIENETH to walk while shesigned the document at the nearby counter.The Court of Appeals also rejected the testimonies of the witnesses ofpetitioners. It found them biased and prejudiced. It instead gave credit tothe testimony of disinterested witness Gonzales. The Court of Appeals thenawarded P99,420.86 as actual damages, the amount representing thehospitalization expenses incurred by private respondents as evidenced by

the hospital's statement of account.12

It denied an award for funeralexpenses for lack of proof to substantiate the same. Instead, acompensatory damage of P50,000 was awarded for the death of ZHIENETH.We quote the dispositive portion of the assailed decision, 13thus:WHEREFORE, premises considered, the judgment of the lower court is SETASIDE and another one is entered against [petitioners], ordering them topay jointly and severally unto [private respondents] the following:1. P50,000.00 by way of compensatory damages for the death of ZhienethAguilar, with legal interest (6% p.a.) from 27 April 1984;

2. P99,420.86 as reimbursement for hospitalization expenses incurred; withlegal interest (6% p.a.) from 27 April 1984;3. P100,000.00 as moral and exemplary damages;4. P20,000.00 in the concept of attorney's fees; and5. Costs.Private respondents sought a reconsideration of the decision but the samewas denied in the Court of Appeals' resolution 14of 16 July 1997.


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Petitioners now seek the reversal of the Court of Appeals'

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