G.R. No. L-12219 March 15, 1918

AMADO 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 been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he 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 two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed that the horseman would move to the other side. The pony had not as yet exhibited fright, and the 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 while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward 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 its rider was thrown off with some violence. From the evidence adduced in the case we believe that when the accident occurred the free space where the pony stood between the automobile and the railing of the bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the horse and the 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 be done; and he must in a moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the automobile was yet some distance away; and from this moment it was not longer within the power of the 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; and it was his duty either to bring his car to an immediate stop or, seeing that there 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. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.

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 person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence 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 Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was 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 to the effects of the typhoon which had dislodged one of the supports of the track. The court found that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability of the company arose from its responsibility for the dangerous condition of its track. In a case like the one now before us, where the defendant was actually present and operating the automobile which caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant was in this case the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect that the subject matter of the 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 question occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing 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 court must be reversed, and judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.G.R. No. L-39587 March 24, 1934

ALEKO E. LILIUS, ET AL.,plaintiffs-appellants,vs.THE MANILA RAILROAD COMPANY,defendant-appellant.Harvey and O'Brien for plaintiffs-appellants.Jose C. Abreu for defendant-appellant.VILLA-REAL,J.:This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the dispositive part of which reads as follows:

Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the purposes above stated, the total amount of P30,865, with the costs of the suit. And although the suit brought by the plaintiffs has the nature of a joint action, it must be understood that of the amount adjudicated to the said plaintiffs in this judgment, the sum of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital, Province of Laguna, and the balance to the plaintiff Aleko E. Lilius.

In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors committed by the trial court in its said judgment, which will be discussed in the course of this decision.

As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as committed by the same courta quoin its judgment in question, which will be discussed later.

This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for material and moral damages suffered by them through the fault and negligence of the said defendant entity's employees, the sum of P50,000 plus legal interest thereon from the date of the filing of the complaint, with costs.

The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his wife and coplaintiff, negligently and recklessly drove his car, and prays that it be absolved from the complaint.

The following facts have been proven at the trial, some without question and the others by a preponderance of evidence, to wit:

The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and photographer. At the time of the collision in question, he was a staff correspondent in the Far East of the magazinesThe American Weeklyof New York andThe Sphereof London.

Some of his works have been translated into various languages. He had others in preparation when the accident occurred. According to him, his writings netted him a monthly income of P1,500. He utilized the linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into English, German, and Swedish. Furthermore, she acted as his secretary.

At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4-year old daughter Brita Marianne Lilius, left Manila in theirStudebakercar driven by the said plaintiff Aleko E. Lilius for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first time that he made said trip although he had already been to many places, driving his own car, in and outside the Philippines. Where the road was clear and unobstructed, the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had made the trip as far as Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with the conditions of the road at said points and had no knowledge of the existence of a railroad crossing at Dayap. Before reaching the crossing in question, there was nothing to indicate its existence and inasmuch as there were many houses, shrubs and trees along the road, it was impossible to see an approaching train. At about seven or eight meters from the crossing, coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several people, who seemed to have alighted from the said truck, were walking on the opposite side. He slowed down to about 12 miles an hour and sounded his horn for the people to get out of the way. With his attention thus occupied, he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a huge black mass fling itself upon him, which turned out to be locomotive No. 713 of the defendant company's train coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's car right in the center. After dragging the said car a distance of about ten meters, the locomotive threw it upon a siding. The force of the impact was so great that the plaintiff's wife and daughter were thrown from the car and were picked up from the ground unconscious and seriously hurt. In spite of the efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it had gone about seventy meters from the crossing.

On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a contusion above the left eye and a lacerated wound on the right leg, in addition to multiple contusions and scratches on various parts of the body. As a result of the accident, the said plaintiff was highly nervous and very easily irritated, and for several months he had great difficulty in concentrating his attention on any matter and could not write articles nor short stories for the newspapers and magazines to which he was a contributor, thus losing for some time his only means of livelihood.

The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right leg, below the knee, and received a large lacerated wound on the forehead. She underwent two surgical operations on the left leg for the purpose of joining the fractured bones but said operations notwithstanding, the leg in question still continues deformed. In the opinion of Dr. Waterous, the deformity is permanent in character and as a result the plaintiff will have some difficulty in walking. The lacerated wound, which she received on her forehead, has left a disfiguring scar.

The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the left side of the face, in addition to fractures of both legs, above and below the knees. Her condition was serious and, for several days, she was hovering between life and death. Due to a timely and successful surgical operation, she survived her wounds. The lacerations received by the child have left deep scars which will permanently disfigure her face, and because of the fractures of both legs, although now completely cured, she will be forced to walk with some difficulty and continuous extreme care in order to keep her balance.

Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there anybody to warn the public of approaching trains. The flagman or switchman arrived after the collision, coming from the station with a red flag in one hand and a green one in the other, both of which were wound on their respective sticks. The said flagman and switchman had many times absented himself from his post at the crossing upon the arrival of a train. The train left Bay station a little late and therefore traveled at great speed.

Upon examination of the oral as well as of the documentary evidence which the parties presented at the trial in support of their respective contentions, and after taking into consideration all the circumstances of the case, this court is of the opinion that the accident was due to negligence on the part of the defendant-appellant company, for not having had on that occasion any semaphore at the crossing at Dayap, to serve as a warning to passers-by of its existence in order that they might take the necessary precautions before crossing the railroad; and, on the part of its employees the flagman and switchman, for not having remained at his post at the crossing in question to warn passers-by of the approaching train; the stationmaster, for failure to send the said flagman and switchman to his post on time; and the engineer, for not having taken the necessary precautions to avoid an accident, in view of the absence of said flagman and switchman, by slackening his speed and continuously ringing the bell and blowing the whistle before arriving at the crossing. Although it is probable that the defendant-appellant entity employed the diligence of a good father of a family in selecting its aforesaid employees, however, it did not employ such diligence in supervising their work and the discharge of their duties because, otherwise, it would have had a semaphore or sign at the crossing and, on previous occasions as well as on the night in question, the flagman and switchman would have always been at his post at the crossing upon the arrival of a train. The diligence of a good father of a family, which the law requires in order to avoid damage, is not confined to the careful and prudent selection of subordinates or employees but includes inspection of their work and supervision of the discharge of their duties.

However, in order that a victim of an accident may recover indemnity for damages from the person liable therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary that the said victim has not, through his own negligence, contributed to the accident, inasmuch as nobody is a guarantor of his neighbor's personal safety and property, but everybody should look after them, employing the care and diligence that a good father of a family should apply to his own person, to the members of his family and to his property, in order to avoid any damage. It appears that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence of his wife and child suggested to him in order that his pleasure trip might be enjoyable and have a happy ending, driving his car at a speed which prudence demanded according to the circumstances and conditions of the road, slackening his speed in the face of an obstacle and blowing his horn upon seeing persons on the road, in order to warn them of his approach and request them to get out of the way, as he did when he came upon the truck parked on the left hand side of the road seven or eight meters from the place where the accident occurred, and upon the persons who appeared to have alighted from the said truck. If he failed to stop, look and listen before going over the crossing, in spite of the fact that he was driving at 12 miles per hour after having been free from obstacles, it was because, his attention having been occupied in attempting to go ahead, he did not see the crossing in question, nor anything, nor anybody indicating its existence, as he knew nothing about it beforehand. The first and only warning, which he received of the impending danger, was two short blows from the whistle of the locomotive immediately preceding the collision and when the accident had already become inevitable.

In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad Company alone is liable for the accident by reason of its own negligence and that of its employees, for not having employed the diligence of a good father of a family in the supervision of the said employees in the discharge of their duties.

The next question to be decided refers to the sums of money fixed by the courta quoas indemnities for damages which the defendant company should pay to the plaintiffs-appellants.

With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the trial court as indemnity for damages, is reasonable.

As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the different items thereof representing doctor's fees, hospital and nursing services, loss of personal effects and torn clothing, have duly been proven at the trial and the sum in question is not excessive, taking into consideration the circumstances in which the said expenses have been incurred.

Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius is in the language of the court, which saw her at the trial "young and beautiful and the big scar, which she has on her forehead caused by the lacerated wound received by her from the accident, disfigures her face and that the fracture of her left leg has caused a permanent deformity which renders it very difficult for her to walk", and taking into further consideration her social standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of indemnity for patrimonial and moral damages, excessive. In the case ofGutierrezvs.Gutierrez(56 Phil., 177), the right leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision between the autobus in which he was riding and the defendant's car, which fractured required medical attendance for a considerable period of time. On the day of the trial the fracture had not yet completely healed but it might cause him permanent lameness. The trial court sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000, in spite of the fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered any facial deformity, nor did he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys.1vvphi1.ne+As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the lacerations received by her have left deep scars that permanently disfigure her face and that the fractures of both her legs permanently render it difficult for her to walk freely, continuous extreme care being necessary in order to keep her balance in addition to the fact that all of this unfavorably and to a great extent affect her matrimonial future.

With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of indemnity for damages consisting in the loss of his income as journalist and author as a result of his illness. This question has impliedly been decided in the negative when the defendant-appellant entity's petition for the reduction of said indemnity was denied, declaring it to be reasonable.

As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's services in his business as journalist and author, which services consisted in going over his writings, translating them into English, German and Swedish, and acting as his secretary, in addition to the fact that such services formed part of the work whereby he realized a net monthly income of P1,500, there is no sufficient evidence of the true value of said services nor to the effect that he needed them during her illness and had to employ a translator to act in her stead.

The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and conjugal companionship", as a result of personal injuries which she had received from the accident now under consideration.

In the case ofGoitia vs.Campos Rueda(35 Phil., 252, 255, 256), this court, interpreting the provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows:

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. . . .

Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife's assistance. This assistance comprises the management of the home and the performance of household duties, including the care and education of the children and attention to the husband upon whom primarily devolves the duty of supporting the family of which he is the head. When the wife's mission was circumscribed to the home, it was not difficult to assume, by virtue of the marriage alone, that she performed all the said tasks and her physical incapacity always redounded to the husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when women, in their desire to be more useful to society and to the nation, are demanding greater civil rights and are aspiring to become man's equal in all the activities of life, commercial and industrial, professional and political, many of them spending their time outside the home, engaged in their businesses, industry, profession and within a short time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to a nursemaid, to public or private institutions which take charge of young children while their mothers are at work, marriage has ceased to create the presumption that a woman complies with the duties to her husband and children, which the law imposes upon her, and he who seeks to collect indemnity for damages resulting from deprivation of her domestic services must prove such services. In the case under consideration, apart from the services of his wife Sonja Maria Lilius as translator and secretary, the value of which has not been proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the existence of domestic services and their nature, rendered by her prior to the accident, in order that it may serve as a basis in estimating their value.

Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal and voluntary acts which neither of the spouses may be compelled to render (Arroyovs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of such services to prove that the person obliged to render them had done so before he was injured and that he would be willing to continue rendering them had he not been prevented from so doing.

In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad company which has not installed a semaphore at a crossing an does not see to it that its flagman and switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is guilty of negligence and is civilly liable for damages suffered by a motorist and his family who cross its line without negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity on the face and on the left leg, suffered by a young and beautiful society woman, is not excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year old girl belonging to a well-to-do family, is not excessive; and (4) that in order that a husband may recover damages for deprivation of his wife's assistance during her illness from an accident, it is necessary for him to prove the existence of such assistance and his wife's willingness to continue rendering it had she not been prevented from so doing by her illness.

The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities adjudicated to them, from the date of the appealed judgment until this judgment becomes final, in accordance with the provisions of section 510 of Act No. 190.

Wherefore, not finding any error in the judgment appealed from, it is hereby affirmedin toto, with the sole modification that interest of 6 per cent per annum from the date of the appealed judgment until this judgment becomes final will be added to the indemnities granted, with the costs of both instances against the appellant. So ordered.G.R. No. L-40570 January 30, 1976

TEODORO C. UMALI,petitioner,vs.HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First Instance of Pangasinan and FIDEL H. SAYNES,respondents.Julia M. Armas for petitioner.

Antonio de los Reyes for private respondent.ESGUERRA,J.:Petition forcertiorarito review the decision of the Court of First Instance of Pangasinan Branch IX, in Civil Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali, defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy of 3 years and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner and manager of the Alcala Electric Plant", although the liability of defendant is mitigated by the contributory negligence of the parents of the boy "in not providing for the proper and delegate supervision and control over their son The dispositive part of the decision reads as follows:

Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the defendant to pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the death of his son, Manuel Saynes; the sum of One Thousand Two Hundred Pesos (P1,200.00) for actual expenses for and in connection with the burial of said deceased child, and the further sum of Three Thousand Pesos (P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a total of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is So Ordered.

Undisputed facts appearing of record are:

On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan, which started from 2:00 o'clock in the afternoon and lasted up to about midnight of the same day. During the storm, the banana plants standing on an elevated ground along the barrio road in San Pedro Ili of said municipality and near the transmission line of the Alcala Electric Plant were blown down and fell on the electric wire. As a result, the live electric wire was cut, one end of which was left hanging on the electric post and the other fell to the ground under the fallen banana plants.

On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San Pedro Iii who was passing by saw the broken electric wire and so he warned the people in the place not to go near the wire for they might get hurt. He also saw Cipriano Baldomero, a laborer of the Alcala Electric Plant near the place and notified him right then and there of the broken line and asked him to fix it, but the latter told the barrio captain that he could not do it but that he was going to look for the lineman to fix it.

Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy of 3 years and 8 months old by the name of Manuel P. Saynes, whose house is just on the opposite side of the road, went to the place where the broken line wire was and got in contact with it. The boy was electrocuted and he subsequently died. It was only after the electrocution of Manuel Saynes that the broken wire was fixed at about 10:00 o'clock on the same morning by the lineman of the electric plant.

Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution could not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused the banana plants to fall and cut the electric line-pointing out the absence of negligence on the part of his employee Cipriano Baldomero who tried to have the line repaired and the presence of negligence of the parents of the child in allowing him to leave his house during that time.

A careful examination of the record convinces Us that a series of negligence on the part of defendants' employees in the Alcala Electric Plant resulted in the death of the victim by electrocution. First, by the very evidence of the defendant, there were big and tall banana plants at the place of the incident standing on an elevated ground which were about 30 feet high and which were higher than the electric post supporting the electric line, and yet the employees of the defendant who, with ordinary foresight, could have easily seen that even in case of moderate winds the electric line would be endangered by banana plants being blown down, did not even take the necessary precaution to eliminate that source of danger to the electric line. Second, even after the employees of the Alcala Electric Plant were already aware of the possible damage the storm of May 14, 1972, could have caused their electric lines, thus becoming a possible threat to life and property, they did not cut off from the plant the flow of electricity along the lines, an act they could have easily done pending inspection of the wires to see if they had been cut. Third, employee Cipriano Baldomero was negligent on the morning of the incident because even if he was already made aware of the live cut wire, he did not have the foresight to realize that the same posed a danger to life and property, and that he should have taken the necessary precaution to prevent anybody from approaching the live wire; instead Baldomero left the premises because what was foremost in his mind was the repair of the line, obviously forgetting that if left unattended to it could endanger life and property.

On defendants' argument that the proximate cause of the victim's death could be attributed to the parents' negligence in allowing a child of tender age to go out of the house alone, We could readily see that because of the aforementioned series of negligence on the part of defendants' employees resulting in a live wire lying on the premises without any visible warning of its lethal character, anybody, even a responsible grown up or not necessarily an innocent child, could have met the same fate that befell the victim. It may be true, as the lower Court found out, that the contributory negligence of the victim's parents in not properly taking care of the child, which enabled him to leave the house alone on the morning of the incident and go to a nearby place cut wire was very near the house (where victim was living) where the fatal fallen wire electrocuted him, might mitigate respondent's liability, but we cannot agree with petitioner's theory that the parents' negligence constituted the proximate cause of the victim's death because the real proximate cause was the fallen live wire which posed a threat to life and property on that morning due to the series of negligence adverted to above committed by defendants' employees and which could have killed any other person who might by accident get into contact with it. Stated otherwise, even if the child was allowed to leave the house unattended due to the parents' negligence, he would not have died that morning where it not for the cut live wire he accidentally touched.

Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this case) was only contributory, the immediate and proximate cause of the injury being the defendants' lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. This law may be availed of by the petitioner but does not exempt him from liability. Petitioner's liability for injury caused by his employees negligence is well defined in par. 4, of Article 2180 of the Civil Code, which states:

The owner and manager of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on tile occasion of their functions.

The negligence of the employee is presumed to be the negligence of the employer because the employer is supposed to exercise supervision over the work of the employees. This liability of the employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the proper defense for the employer to raise so that he may escape liability is to prove that he exercised, the diligence of the good father of the family to prevent damage not only in the selection of his employees but also in adequately supervising them over their work. This defense was not adequately proven as found by the trial Court, and We do not find any sufficient reason to deviate from its finding.

Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in this case, either in its appreciation of the evidence on questions of facts or on the interpretation and application of laws government quasi-delicts and liabilities emanating therefrom. The inevitable conclusion is that no error amounting to grave abuse of discretion was committed and the decision must be left untouched.

WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.

Costs against petitioner.

SO ORDERED.G.R. No. L-21291 March 28, 1969

PRECIOLITA V. CORLISS,plaintiff-appellant,vs.THE MANILA RAILROAD CO.,defendant-appellant.Moises C. Nicomedes for plaintiff-appellant.The Government Corporate Counsel for defendant-appellee.FERNANDO,J.: Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and with reason. The future, bright with promise, looms ahead. One's powers are still to be tested, but one feels ready for whatever challenge may come his way. There is that heady atmosphere of self-confidence, at times carried to excess. The temptation to take risks is there, ever so often, difficult, if not impossible, to resist. There could be then a lessening of prudence and foresight, qualities usually associated with age. For death seems so remote and contingent an event. Such is not always the case though, and a slip may be attended with consequences at times unfortunate, even fatal. Some such thought apparently was in the mind of the lower court when it dismissed the complaint for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss whose husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the victim of a grim tragedy, when the jeep he was driving collided with a locomotive of defendant-appellee Manila Railroad Company, close to midnight on the evening of Feb 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of the Clark Air Force Base. In the decision appealed from, the lower court, after summarizing the evidence, concluded that the deceased "in his eagerness to beat, so to speak, the oncoming locomotive, took the risk and attempted to reach the other side, but unfortunately he became the victim of his own miscalculation."1 The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory proof to that effect, in its opinion, being lacking. Hence this appeal direct to us, the amount sought in the concept of damages reaching the sum of P282,065.40. An examination of the evidence of record fails to yield a basis for a reversal of the decision appealed from. We affirm. According to the decision appealed from, there is no dispute as to the following: "In December 1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr. was an air police of the Clark Air Force Base; that at the time of the accident, he was driving the fatal jeep; that he was then returning in said jeep, together with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at the Base Hospital the next day, while the soldier sustained serious physical injuries and burns."2 Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus: "Ronald J. Ennis, a witness of the plaintiff, substantially declared in his deposition, ..., that at the time of the accident, he also awaiting transportation at the entrance of Clark Field, which was about 40 to 50 yards away from the tracks and that while there he saw the jeep coming towards the Base. He said that said jeep slowed down before reaching the crossing, that it made a brief stop but that it did not stop dead stop. Elaborating, he declared that while it was slowing down, Corliss Jr. shifted into first gear and that was what he meant by a brief stop. He also testified that he could see the train coming from the direction of San Fernando and that he heard a warning but that it was not sufficient enough to avoid the accident."3Also: "Virgilio de la Paz, another witness of the plaintiff, testified that on the night of February 21, 1957, he was at the Balibago checkpoint and saw the train coming from Angeles and a jeep going towards the direction of Clark Field. He stated that he heard the whistle of the locomotive and saw the collision. The jeep, which caught fire, was pushed forward. He helped the P.C. soldier. He stated that he saw the jeep running fast and heard the tooting of the horn. It did not stop at the railroad crossing, according to him."4 After which reference was made to the testimony of the main witness for defendant-appellee, Teodorico Capili, "who was at the engine at the time of the mishap," and who "testified that before the locomotive, which had been previously inspected and found to be in good condition approached, the crossing, that is, about 300 meters away, he blew the siren and repeated it in compliance with the regulations until he saw the jeep suddenly spurt and that although the locomotive was running between 20 and 25 kilometers an hour and although he had applied the brakes, the jeep was caught in the middle of the tracks."5 1. The above finding as to the non-existence of negligence attributable to defendant-appellee Manila Railroad Company comes to us encased in the armor of what admittedly appears to be a careful judicial appraisal and scrutiny of the evidence of record. It is thus proof against any attack unless sustained and overwhelming. Not that it is invulnerable, but it is likely to stand firm in the face of even the most formidable barrage. In the more traditional terminology, the lower court judgment has in its favor the presumption of correctness. It is entitled to great respect. After all, the lower court had the opportunity of weighing carefully what was testified to and apparently did not neglect it. There is no affront to justice then if its finding be accorded acceptance subject of course the contingency of reversal if error or errors, substantial in character, be shown in the conclusion thus arrived at. It is a fair statement of the governing, principle to say that the appellate function is exhausted when there is found to be a rational basis for the result reached by the trial court. As was held in a 1961 decision: "We have already ruled, that when the credibility of witnesses is the one at issue, the trial court's judgment as to their degree of credence deserves serious consideration by this Court."6An earlier expression of the same view is found inJai-Alai Corporation v. Ching Kiat: "After going over the record, we find no reason for rejecting the findings of the court below. The questions raised hinge on credibility and it is well-settled that in the absence of compelling reasons, its determination is best left to the trial judge why had the advantage of hearing the parties testify and observing their demeanor on the witness stand."7 In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any arbitrary or abusive conduct on the part of the trial judge in the formulation of the ruling. His conclusion on the matter is sufficiently borne out by the evidence presented. We are denied, therefore, the prerogative to disturb that finding, consonant to the time honored tradition of the Tribunal to hold trial judges better situated to make conclusions on questions of fact'."8On this ground alone we can rest the affirmance of the judgment appealed from.lwphi1.et 2. Nor is the result different even if no such presumption were indulged in and the matter examined as if we were exercising original and not appellate jurisdiction. The sad and deplorable situation in which plaintiff-appellant now finds herself, to the contrary notwithstanding we find no reason for reversing the judgment of the lower court. This action is predicated on negligence, the Civil Code making clear that whoever by act or omission causes damage to another, there being negligence, is under obligation to pay for the damage done.9Unless it could be satisfactorily shown, therefore, that defendant-appellee was guilty of negligence then it could not be held liable. The crucial question, therefore, is the existence of negligence. The above Civil Code provision, which is a reiteration of that found in the Civil Code of Spain, formerly applicable in this jurisdiction,10had been interpreted in earlier decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co.,11Manresa was cited to the following effect "'Among the questions most frequently raised and upon which the majority of cases have been decided with respect to the application of this liability, are those referring to the determination of the damage or prejudice, and to the fault or negligence of the person responsible therefor. These are the two indispensable factors in the obligations under discussion, for without damage or prejudice there can be no liability, and although this element is present no indemnity can be awarded unless arising from some person's fault or negligence'." Negligence was defined by us in two 1912 decisions, United States v. Juanillo12and United States v. Barias.13Cooley' formulation was quoted with approval in both the Juanillo and Barias decisions. Thus: "Judge Cooley in his work on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstance justly demand whereby such other person suffers injury." There was likewise a reliance on Ahern v. Oregon Telephone Co.14Thus: "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." To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the action of plaintiff-appellee must necessary fail. The facts being what they are, compel the conclusion that the liability sought to be fastened on defendant-appellee had not arisen. 3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from on the ground that there was a failure to appreciate the true situation. Thus the first three assigned errors are factual in character. The third assigned error could be summarily disposed of. It would go against the evidence to maintain the view that the whistle was not sounded and the brakes not applied at a distance of 300 meters before reaching the crossing. The first two assigned errors would make much of the failure of the lower court to hold that the crossing bars not having been put down and there being no guard at the gate-house, there still was a duty on the part of Corliss to stop his jeep to avoid a collision and that Teodorico Capili, who drove the engine, was not qualified to do so at the time of the accident. For one cannot just single out circumstance and then confidently assign to it decisive weight and significance. Considered separately, neither of the two above errors assigned would call for a judgment different in character. Nor would a combination of acts allegedly impressed with negligence suffice to alter the result. The quantum of proof required still not been met. The alleged errors fail of their said effect. The case for plaintiff-appellant, such as it had not been improved. There is no justification for reversing the judgment of the lower court. It cannot be stressed too much that the decisive considerations are too variable, too dependent in the lid analysis upon a common sense estimate of the situation as it presented itself to the parties for us to be able to say that this or that element having been isolated, negligence is shown. The factors that enter the judgment are too many and diverse for us to imprison them in a formula sufficient of itself to yield the correct answer to the multi-faceted problems the question of negligence poses. Every case must be dependent on its facts. The circumstances indicative of lack of due care must be judged in the light of what could reasonably be expected of the parties. If the objective standard of prudence be met, then negligence is ruled out. In this particular case, it would be to show less than fidelity to the controlling facts to impute negligence to defendant-appellee. The first three errors assigned certainly do not call for that conclusion. 4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant apparently had in mind this portion of the opinion of the lower court: "The weight of authorities is to the effect that a railroad track is in itself a warning or a signal of danger to those who go upon it, and that those who, for reasons of their own, ignore such warning, do so at their own risk and responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint frequently, if not daily, must have known that locomotive engines and trains usually pass at that particular crossing where the accident had taken place."15 Her assignment of error, however, would single out not the above excerpt from the decision appealed from but what to her is the apparent reliance of the lower court onMestres v. Manila Electric Railroad & Light Co.16and United States v. Manlabat & Pasibi.17In the Manabat case, the doctrine announced by this Court follows: "A person in control of an automobile who crosses a railroad, even at a regular road crossing, and who does not exercise that precaution and that control over it as to be able to stop the same almost immediately upon the appearance of a train, is guilty of criminal negligence, providing a collision occurs and injury results. Considering the purposes and the general methods adopted for the management of railroads and railroad trains, we think it is incumbent upon one approaching a railroad crossing to use all of his faculties of seeing and hearing. He should approach a railroad crossing cautiously and carefully. He should look and listen and do everything that a reasonably prudent man would do before he attempts to cross the track." The Mestres doctrine in a suit arising from a collision between an automobile and a street car is substantially similar. Thus: "It may be said, however, that, where a person is nearing a street crossing toward which a car is approaching, the duty is on the party to stop and avoid a collision who can most readily adjust himself to the exigencies of the case, and where such person can do so more readily, the motorman has a right to presume that such duty will be performed." It is true, as plaintiff-appellant would now allege that there has been a drift away from the apparent rigid and inflexible doctrine thus set forth in the two above cases evidenced byLilius v. Manila Railroad Co.,18the controlling facts of which, however, are easily distinguishable from what had been correctly ascertained in the present case. Such a deviation from the earlier principle announced is not only true of this jurisdiction but also of the United States. This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the following to say: "Especially noteworthy in this respect is the attempt Mr. Justice Holmes, in Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,' which would require an automobile driver approaching a railroad crossing with an obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train is coming to get out of the car. The basic idea behind this is sound enough: it is by no means proper care to cross a railroad track without taking reasonable precautions against a train, and normally such precautions will require looking, hearing, and a stop, or at least slow speed, where the view is obstructed."19 Then, barely seven years later, in 1934, camePakora v. Wabash Railway,20where, according to Prosser, it being shown that "the only effective stop must be made upon the railway tracks themselves, in a position of obligation danger, the court disregarded any such uniform rule, rejecting the 'get out of the car' requirement as 'an uncommon precaution, likely to be futile and sometimes even dangerous,' and saying that the driver need not always stop. 'Illustrations such as these,' said Mr. Justice Cardozo 'bear witness to the need for caution in framing standards of behavior that amount to rules of law.... Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal."21 What Justice Cardozo announced would merely emphasize what was set forth earlier that each and every, case on questions of negligence is to be decided in accordance with the peculiar circumstances that present themselves. There can be no hard and fast rule. There must be that observance of that degree of care, precaution, and vigilance which the situation demands. Thus defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed to it. What commends itself for acceptance is this conclusion arrived at by the lower court: "Predicated on the testimonies of the plaintiff's witnesses, on the knowledge of the deceased and his familiarity with the setup of the checkpoint, the existence of the tracks; and on the further fact that the locomotive had blown its siren or whistle, which was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently warned in advance of the oncoming train that it was incumbent upon him to avoid a possible accident and this consisted simply in stopping his vehicle before the crossing and allowing the train to move on. A prudent man under similar circumstances would have acted in this manner. This, unfortunately, Corliss, Jr. failed to do."22 WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint, is affirmed. Without pronouncement as to costs.G.R. No. L-32611 November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC.,plaintiff-appellee,vs.PHILIPPINE MOTORS CORPORATION,defendant-appellant.Gibbs and McDonough for appellant.Benj. S. Ohnick for appellee.STREET,J.:This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric Co., Inc., for the purpose of recovering from the Philippine Motors Corporation the sum of P11,350, with interest and costs. Upon hearing the cause the trial court gave judgment in favor of the plaintiff to recover of the defendant the sum of P9,850, with interest at 6 per centum per annum from March 24,1927, the date of the filing of the complaint, until satisfaction of the judgment, with costs. From this judgment the defendant appealed.

The plaintiff and defendant are domestic corporations; and at the time of the incident with which we are here concerned, H.D. Cranston was the representative of the plaintiff in the City of Manila. At the same time the plaintiff was the registered owner of the motor schoonerGwendoline, which was used in the fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if practicable, to have the engine on theGwendolinechanged from a gasoline consumer to a crude oil burner, expecting thereby to effect economy in the cost of running the boat. He therefore made known his desire to McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of said company, that he might make inquiries of the Philippine Motors Corporations, which had its office on Ongpin Street, in the City of Manila. Cranston accordingly repaired to the office of the Philippine Motors Corporation and had a conference with C.E. Quest, its manager, who agreed to do the job, with the understanding that payment should be made upon completion of the work.

The Philippine Motors Corporation was at this time engaged in business as an automobile agency, but, under its charter, it had authority to deal in all sorts of machinery engines and motors, as well as to build, operate, buy and sell the same and the equipment therof. Quest, as general manager, had full charge of the corporations in all its branches.

As a result of the aforesaid interview, Quest, in company with Cranston, visited theGwendolinewhile it lay at anchor in the Pasig River, and the work of effecting the change in the engine was begun and conducted under the supervision of Quest, chiefly by a mechanic whom Quest took with him to the boat. In this work Quest had the assistance of the members of the crew of theGwendoline, who had been directed by Cranston to place themselves under Quest's directions.

Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary to accomplish the end in view was to install a new carburetor, and a Zenith carburetor was chosen as the one most adapted to the purpose. After this appliance had been installed, the engine was tried with gasoline as a fuel, supplied from the tank already in use. The result of this experiment was satisfactory. The next problem was to introduce into the carburetor the baser fuel, consisting of a low grade of oil mixed with distillate. For this purpose a temporary tank to contain the mixture was placed on deck above and at a short distance from the compartment covering the engine. This tank was connected with the carburetor by a piece of tubing, which was apparently not well fitted at the point where it was connected with the tank. Owing to this fact the fuel mixture leaked from the tank and dripped sown into the engine compartment. The new fuel line and that already in use between the gasoline tank and carburetor were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. The purpose of this arrangement was to enable the operator to start the engine on gasoline and then, after the engine had been operating for a few moments, to switch to the new fuel supply.lawphil.netIn the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the lower part to the carburetor to the floor. This fact was called to Quest's attention, but he appeared to think lightly of the matter and said that, when the engine had gotten to running well, the flooding would disappear.

After preliminary experiments and adjustments had been made the boat was taken out into the bay for a trial run at about 5 p.m. or a little later, on the evening of January 30,1925. The first part of the course was covered without any untoward development, other than he fact that the engine stopped a few times, owing no doubt to the use of an improper mixture of fuel. In the course of the trial Quest remained outside of the engine compartment and occupied himself with making distillate, with a view to ascertaining what proportion of the two elements would give best results in the engine.

As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the engine stopped, and connection again had to be made with the gasoline line to get a new start. After this had been done the mechanic, or engineer, switched to the tube connecting with the new mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with a mass of flames, which the members of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat, and their escape was safely effected, but theGwendolinewas reduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the boat, before the accident occured, as the court found, was P10,000.

A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was apparently at too great an elevation from the carburetor, with the result that when the fuel line was opened, the hydrostatic pressure in the carburetor was greater than the delicate parts of the carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the result was that; when the back fire occurred, the external parts of the carburetor, already saturated with gasoline, burst into flames, whence the fire was quickly communicated to the highly inflammable material near-by. Ordinarily a back fire from an engine would not be followed by any disaster, but in this case the leak along the pipe line and the flooding of the carburetor had created a dangerous situation, which a prudent mechanic, versed in repairs of this nature, would have taken precautions to avoid. The back fire may have been due either to the fact that the spark was too advanced or the fuel improperly mixed.

In this connection it must be remembered that when a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. The proof shows that Quest had had ample experience in fixing the engines of automobiles and tractors, but it does not appear that he was experienced in the doing of similar work on boats. For this reason, possibly the dripping of the mixture form the tank on deck and the flooding of the carburetor did not convey to his mind an adequate impression of the danger of fire. But a person skilled in that particular sort of work would, we think have been sufficiently warned from those circumstances to cause him to take greater and adequate precautions against the danger. In other words Quest did not use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, on the part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. The burning of theGwendolinemay be said to have resulted from accident, but this accident was in no sense an unavoidable accident. It would not have occured but for Quest's carelessness or lack of skill. The test of liability is not whether the injury was accidental in a sense, but whether Quest was free from blame.

We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or negligence in effecting the changes which Quest undertook to accomplish; and even supposing that our theory as to the exact manner in which the accident occurred might appear to be in some respects incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it wascasus fortuitus.The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of theGwendolineduring the experimental run, the defendant corporation was in the position of a bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself from responsibility by proving that the accident was not due to the fault of Quest. We are unable to accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat on this trial run. His employment contemplated the installation of new parts in the engine only, and it seems rather strained to hold that the defendant corporation had thereby become bailee of the boat. As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are determined by the general rules of law, under their contract. The true bailee acquires possession and what is usually spoken of as special property in the chattel bailed. As a consequence of such possession and special property, the bailee is given a lien for his compensation. These ideas seem to be incompatible with the situation now under consideration. But though defendant cannot be held liable in the supposition that the burden of proof had not been sustained by it in disproving the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear preponderance that the accident to theGwendolineand the damages resulting therefrom are chargeable to the negligence or lack of skill of Quest.

This action was instituted about two years after the accident in question had occured, and after Quest had ceased to be manager of the defendant corporation and had gone back to the United States. Upon these facts, the defendant bases the contention that the action should be considered stale. It is sufficient reply to say that the action was brought within the period limited by the statute of limitations and the situation is not one where the defense of laches can be properly invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850, with interest, must be affirmed; and it is so ordered, with costs against the appellant.G.R. No. L-12191 October 14, 1918

JOSE CANGCO,plaintiff-appellant,vs.MANILA RAILROAD CO.,defendant-appellee.Ramon Sotelo for appellant.Kincaid & Hartigan for appellee.FISHER,J.:At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the defendant railroad company; and in coming daily by train to the company's office in the city of Manila where he worked, he used a pass, supplied by the company, which entitled him to ride upon the company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff arose from his seat in the second class-car where he was riding and, making, his exit through the door, took his position upon the steps of the coach, seizing the upright guardrail with his right hand for support.

On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins to rise with a moderate gradient some distance away from the company's office and extends along in front of said office for a distance sufficient to cover the length of several coaches. As the train slowed down another passenger, named Emilio Zuiga, also an employee of the railroad company, got off the same car, alighting safely at the point where the platform begins to rise from the level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco stepped off also, but one or both of his feet came in contact with a sack of watermelons with the result that his feet slipped from under him and he fell violently on the platform. His body at once rolled from the platform and was drawn under the moving car, where his right arm was badly crushed and lacerated. It appears that after the plaintiff alighted from the train the car moved forward possibly six meters before it came to a full stop.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a single light located some distance away, objects on the platform where the accident occurred were difficult to discern especially to a person emerging from a lighted car.

The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the fact that it was the customary season for harvesting these melons and a large lot had been brought to the station for the shipment to the market. They were contained in numerous sacks which has been piled on the platform in a row one upon another. The testimony shows that this row of sacks was so placed of melons and the edge of platform; and it is clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at the moment he stepped upon the platform. His statement that he failed to see these objects in the darkness is readily to be credited.

The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which he had received were very serious. He was therefore brought at once to a certain hospital in the city of Manila where an examination was made and his arm was amputated. The result of this operation was unsatisfactory, and the plaintiff was then carried to another hospital where a second operation was performed and the member was again amputated higher up near the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of medical and surgical fees and for other expenses in connection with the process of his curation.

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover damages of the defendant company, founding his action upon the negligence of the servants and employees of the defendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to the security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his Honor, the trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the effect that, although negligence was attributable to the defendant by reason of the fact that the sacks of melons were so placed as to obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had failed to use due caution in alighting from the coach and was therefore precluded form recovering. Judgment was accordingly entered in favor of the defendant company, and the plaintiff appealed.

It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on the platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the train; and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarily follows that the defendant company is liable for the damage thereby occasioned unless recovery is barred by the plaintiff's own contributory negligence. In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the primary responsibility of the defendant company and the contributory negligence of the plaintiff should be separately examined.

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that contract by reason of the failure of defendant to exercise due care in its performance. That is to say, its liability is direct and immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the negligence of its servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their selection and supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to extra-contractual obligations or to use the technical form of expression, that article relates only toculpaaquiliana and not toculpa contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this distinction, which was also recognized by this Court in its decision in the case of Rakesvs.Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points out the difference between "culpa, substantive and independent, which of itself constitutes the source of an obligation between persons not formerly connected by any legal tie" andculpaconsidered as an accident in the performance of an obligation already existing . . . ."

In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903 of the Civil Code is not applicable to acts of negligence which constitute the breach of a contract.

Upon this point the Court said:

The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be those not growing out of pre-existing duties of the parties to one another. But where relations already formed give rise to duties, whether springing from contract or quasi-contract, then breaches of those duties are subject to article 1101, 1103, and 1104 of the same code. (Rakesvs.Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposed upon employers with respect to damages occasioned by the negligence of their employees to persons to whom they are not bound by contract, is not based, as in the English Common Law, upon the principle ofrespondeat superior if it were, the master would be liable in every case and unconditionally but upon the principle announced in article 1902 of the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another, the obligation of making good the damage caused. One who places a powerful automobile in the hands of a servant whom he knows to be ignorant of the method of managing such a vehicle, is himself guilty of an act of negligence which makes him liable for all the consequences of his imprudence. The obligation to make good the damage arises at the very instant that the unskillful servant, while acting within the scope of his employment causes the injury. The liability of the master is personal and direct. But, if the master has not been guilty of any negligence whatever in the selection and direction of the servant, he is not liable for the acts of the latter, whatever done within the scope of his employment or not, if the damage done by the servant does not amount to a breach of the contract between the master and the person injured.

It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the master from liability for the latter's acts on the contrary, that proof shows that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-contractualculpais always based upon a voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused damage to another. A master who exercises all possible care in the selection of his servant, taking into consideration the qualifications they should possess for the discharge of the duties which it is his purpose to confide to them, and directs them with equal diligence, thereby performs his duty to third persons to whom he is bound by no contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants, even within the scope of their employment, such third person suffer damage. True it is that under article 1903 of the Civil Code the law creates apresumptionthat he has been negligent in the selection or direction of his servant, but the presumption is rebuttable and yield to proof of due care and diligence in this respect.

The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held that these articles are applicable to cases of extra-contractualculpaexclusively. (Carmonavs.Cuesta, 20 Porto Rico Reports, 215.)

This distinction was again made patent by this Court in its decision in the case of Bahiavs.Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory of the extra-contractual liability of the defendant to respond for the damage caused by the carelessness of his employee while acting within the scope of his employment. The Court, after citing the last paragraph of article 1903 of the Civil Code, said:

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that that presumption isjuris tantumand notjuris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on hisownnegligence and not on that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in striking contrast to the American doctrine that, in relations with strangers, the negligence of the servant in conclusively the negligence of the master.

The opinion there expressed by this Court, to the effect that in case of extra-contractualculpabased upon negligence, it is necessary that there shall have been some fault attributable to the defendant personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption, is in complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by reason of the breach of the duties inherent in the special relations of authority or superiority existing between the person called upon to repair the damage and the one who, by his act or omission, was the cause of it.

On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or agents, when such acts or omissions cause damages which amount to the breach of a contact, is not based upon a mere presumption of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract.

Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source in the breach or omission of those mutual duties which civilized society imposes upon it members, or which arise from these relations, other than contractual, of certain members of society to others, generally embraced in the concept ofstatus. The legal rights of each member of society constitute the measure of the corresponding legal duties, mainly negative in character, which the existence of those rights imposes upon all other members of society. The breach of these general duties whether due to willful intent or to mere inattention, if productive of injury, give rise to an obligation to indemnify the injured party. The fundamental distinction between obligations of this character and those which arise from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates thevinculum juris, whereas in contractual relations thevinculumexists independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation.

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the legislature to elect and our Legislature has so elected whom such an obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to extend that liability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those person who acts or mission are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislature which adopted our Civil Code has elected to limit extra-contractual liability with certain well-defined exceptions to cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility may consist in having failed to exercise due care in the selection and control of one's agents or servants, or in the control of persons who, by reason of their status, occupy a position of dependency with respect to the person made liable for their conduct.

The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly different from that to which article 1903 relates. When the sources of the obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence if he does not his action fails. But when the facts averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the defendant, or of his servants or agents. Proof of the contract and of its nonperformance is sufficientprima facieto warrant a recovery.

As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume the burden of proof of its existence, as the only fact upon which his action is based; while on the contrary, in a case of negligence which presupposes the existence of a contractual obligation, if the creditor shows that it exists and that it has been broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).

As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to the negligent conduct of defendant or of his servants, even though such be in fact the actual cause of the breach, it is obvious that proof on the part of defendant that the negligence or omission of his servants or agents caused the breach of the contract would not constitute a defense to the action. If the negligence of servants or agents could be invoked as a means of discharging the liability arising from contract, the anomalous result would be that person acting through the medium of agents or servants in the performance of their contracts, would be in a better position than those acting in person. If one delivers a valuable watch to watchmaker who contract to repair it, and the bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be logical to free him from his liability for the breach of his contract, which involves the duty to exercise due care in the preservation of the watch, if he shows that it was his servant whose negligence caused the injury? If such a theory could be accepted, juridical persons would enjoy practically complete immunity from damages arising from the breach of their contracts if caused by negligent acts as such juridical persons can of necessity only act through agents or servants, and it would no doubt be true in most instances that reasonable care had been taken in selection and direction of such servants. If one delivers securities to a banking corporation as collateral, and they are lost by reason of the negligence of some clerk employed by the bank, would it be just and reasonable to permit the bank to relieve itself of liability for the breach of its contract to return the collateral upon the payment of the debt by proving that due care had been exercised in the selection and direction of the clerk?

This distinction betweenculpa aquiliana, as thesourceof an obligation, andculpa contractualas a mere incident to the performance of a contract has frequently been recognized by the supreme court of Spain. (Sentenciasof June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions of Nove