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TEST OF NEGLIGENCE

G.R. No. 73998 November 14,1998


PEDRO LAYUGAN vs. IAC, GODOFREDO ISIDRO and TRAVELELLERS MULTI-INDEMNITY
CORPORATION
FACTS:
Pedro T. Layugan filed an action for damages against Godofredo Isidro alleging that
on May 15,199 while at Baretbet Bagabag, Nueva Vizcaya, Layugan and a
companion were repairing the tire of their cargo truck which was parked along the
right side of the National Highway. Isidros Truck driven by Daniel Serrano bumped
the plaintiff , injuring him and got him hospitalized where he spent P10k. Because of
the injuries he sustained, he would be deprived of a lifetime income in the sum of
70k and furthermore he incurred expenses for his lawyer at 10k. Layugan declared
that he is married with one child,employed as a security guard with salary of 6k,
when off duty he work as truck helper. Due to the injury his left leg was amputated
so he had to use crutches to walk.
Defendant Isidro admitted his ownership of the vehicle involved driven by Daniel
Serrano. Isidro countered that plaintiff was merely a bystander and not a truck
helper of the stalled truck. Furthermore the truck being repaired was parked
occupying almost half of the right lane right after the curve. That the proximate
cause of the incident was the failure of the driver to install an early warning device
hence the parked car should be liable for the damages sustained by the truck of
Isidro in the amount of 20k, and Layugan being a bystander and a hitchhiker must
suffer all the damages he incurred. As counterclaim defendant interpose that he
incurred lawyers fee 5K, and ask for moral damages at 30k.
Defendant later on filed a third-party complaint against his insurer, the Travellers
Multi Indemnity corp. for contribution , indemnity under the insurance policy arising
from death, bodily injuries and damage to property.
Insurance company, answered that assuming that subject matter of the complaint is
covered by a valid and existing insurance policy, its liability shall in no case exceed
the limit defined under the terms and conditions of the insurance policy. That the
complain is premature as no claim has been submitted to the third party defendant
as prescribed under the Insurance Code.
The trial court rendered decision in favor of plaintiff. Awarding actual and
compensatory damages, attorneys fees and moral damages.
On appeal, Intermediate Appellate Court reversed the decision of the Trial Court and
dismissed the complaint and the counter-claims of both appellant.
ISSUE:
WON plaintiff was negligent under the doctrine Res ipsa Loquitur (the thing speaks
for itself).
RULING:
No. Petitioner is not negligent.

Negligence is the omission to do something which a reasonable man, guided by


those consideration which ordinarily regulate the conduct of human affairs, would
do , or the doing of something which a prudent and reasonable man would not do or
as Judge Cooley defines, The failure to observe for the protection of the interest of
another person, that degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury.
As decided in Picart vs. Smith, the test to determine the existence of negligence
may be stated as follows:
Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in the same situation?
If not, then he is guilty of negligence.
The evidence on record discloses that three or four meters from the rear of the
parked truck, a lighted kerosene lamp was placed. Furthermore, the driver of Isidro
during the cross examination admitted that when he tried to stepped on the brake
to avoid hitting the parked truck, the brake did not work. The faulty brake was due
to the broken brake fluid pipe.
Being sued under Art. 2175 in relation to Art 2180 par. 5, of the NCC. The injury
caused by the negligence of the servant or employee there instantly arises a
presumption of law that there was negligence on the part of the master or employer
either in the selection of the servant or employee, or in supervision over him after
selection, or both.
Here, the driver did not check his vehicle before he took it on the road. If he did he
could have discovered earlier that the brake fluid pipe on the right was cut and
could have repaired it and thus the collision could have been avoided. Respondent
or his mechanic, who must be competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to drive it. Thus, respondent
failed to observe that diligence of a good father of a family in the supervision of his
employee which could have exculpate him from solidarity liability with his driver to
the petitioner.
WHEREFORE petition is granted. Decision of IAC set aside, decision of trial court
reinstated.
CONCEPT OF PRUDENT MAN
Picart vs. Smith (kilala na natin to.)
PHOENIC CONSTRUCTION INC. AND ARMANDO U. CARBONEL vs. IAC and LEONARDO
DIONISIO
G.R. No. L-65295 March 10,1987
FACTS:
On November 15,1975 Private respondent Leonardo Dionisio coming from a
cocktail-dinner meeting, collided with the parked dump truck owned by Phoenix
Construction Inc. (Phoenix) along Bangkal Makati. The truck was driven home by

petitioner Armando Carbonel, its regular driver , in view of work scheduled to be


carried out early the following morning. There was no lights nor any so-called early
warning reflector devices set anywhere near the dump truck, front or rear.
Moreover, the truck was parked askew in such a manner as to stick out onto the
street, partly blocking the way of oncoming traffic.
As a result of the collision, Dionisio suffered some physical injuries including some
permanent facial scars, a nervous breakdown and loss of two gold bridge
dentures.
Dionisio commenced an action for damages before CFI of Pampanga basically
claiming that the legal and proximate cause of his injuries was the negligent
manner in which Carbonel parked the dump truck. Carbonel and Phoenix countered
that the proximate cause of Dionisios injuries was his own recklessness in driving
fast at the time of the accident, while under the influence of liquor.
The trial court rendered judgment in favor of Dionisio and against Phoenix and
Carbonel.
Phoenix and Carbonel appealed to IAC which affirmed the decision of the trial Court
with modification lowering the award of damages.
ISSUE:
WON Dionisio was negligent.
Ruling:
Yes. Respondent was negligent.
The factual circumstances outlined by the testimony of the Patrolman who took the
unconscious Dionisio to the hospital after the collision is conclusive.
Dionisio was driving faster than he should have, without his headlights at or near
the intersection where the dump truck was parked.
However, the court believed that the manner in which the truck was parked was an
indispensable and efficient cause. The collision between the dump truck and the
private respondents car would in probability not have occurred had the dump truck
not been parked askew without any warning lights or reflector devices. The
improper parking of the dump truck created an unreasonable risk of injury for
anyone driving down that street and for having so created this risk, the truck driver
must be held responsible.
The court believe that Dionisios neglince was only contributory that the
immediate and proximate cause of the injury remained the truck drivers lack of
due care and that consequently respondent Dionisio may recover damages though
such damages are subject to mitigation by the courts.
The liability of Phoenix as employer arise from failure to overcome the presumption
of diligence in the supervision of their employee particularly in the manner in which
the dump tuck is parked when away from company premises.

WHEREFORE, the decision of the respondent appellate court is modified by reducing


the aggregate amount of compensatory damages, loss of expected income and
moral damages private respondent Dionisio is entitled to by 20% of such amount.
Cost against petitioner.
GLAN PEOPLE LUMBER AND HARDWARE, GEORGE LIM, FABIO s. AGAD,
FELIX LIM AND PAUL ZACARIAS y INFANTE vs. IAC, CECILIA ALFEREZ VDA.
DE CALIBO
G.R. No. 70493 May 18,1989
FACTS:
On November 27,1979 a case for damages was filed by the wife and children of late
Engineer Calibo who died after the jeep driven by him collided with the cargo truck
driven by Paul Zacarias y Infants.
The case was filed against the owner of Glan Peoples Lumber and Hardware and
Paul Zacarias Y Infante.
The trial court concluded that the plaintiff (widow) failed to establish by
preponderance of evidence the negligence and thus liability of defendant ( Glan
Peoples lumber) the complaint was dismissed.
On appeal, CA rendered decision in favor of plaintiff. The court found Zacarias
negligent, for driving without a drivers license and for driving in the opposite lane.
CA opined that Zacarias negligence gave rise to the presumption of negligence on
the part of his employer and their liability is both primary and solidary.
ISSUE:
WON Zacarias was negligent.
Ruling:
No. Zacarias was not negligent.
The trial court have found that Zacarias being well within his own lane, had no need
to swerve out of the jeeps way. Coming to a full stop with the jeep still thirty
meters away cannot be considered an unsafe or imprudent action, there was also
uncontradicted evidence that the jeep was zigzagging and hence no way of telling
which direction it would go as it approached the truck.
CA also made an error when it found Zacarias without a drivers license. The traffic
accident report attest to the proven fact that Zacarias voluntarily surrendered to the
investigating officers his drivers license, just renewed the day before the collision.
The evidence showed that it was Engineer Calibo who was driving recklessly.
Eyewitnesses to the accident had remarked that the jeep was driven in a zigzag
manner. There is moreover more than a suggestion that Calibo had been drinking
shortly before the accident. No drivers license was found on the person of Calibo.

Applying the ruling in Picart vs. Smith that finding that there were negligence on
the part of both parties, that of the defendant was the immediate and determining
cause of the accident and than that of the plaintiff xxxxx it goes without saying
that the plaintiff himself was not free form 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 he 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.
Wherefore, the appealed judgment is hereby reversed. The complaint dismissed.

SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children,
ROSALIA BERTULANO in her behalf and as legal guardian of her minor children,
PRIMITIVA FAJARDO in her behalf and as legal guardian of her minor children,
EMETERIA LIAGOSO in her behalf and as guardian ad litem of her minor
grandchildren
Vs.
CA and City of Davao
G.R. No. 92087 May 8,1992
FACTS:
An invitation to bid was issued to empty the septic tank of Agdao Public Market in
Davao. Several bidders joined one of which is Aurelino Bertulano. Bertulano lost and
one, Feliciano Bascon won.
Before Bascon signed the purchase order, bidder Bertulano with four other
companions were found dead inside the septic tank. Investigation revealed that the
4 emptied the tank without authority and died of asphyxia caused by the
diminution of oxygen supply in the body working below normal conditions.

Case was filed by the surviving spouse and guardian of the minor children of the
deceased Bertulano, Fernado, Fajardo and Garcia.