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-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 to culpa aquiliana and not to culpa 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 Rakes vs. 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" and culpa considered 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. (Rakes vs. 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 of respondeat 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-contractual culpa is
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 a presumption that 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 extracontractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto
Rico Reports, 215.)
This distinction was again made patent by this Court in its
decision in the case of Bahia vs. 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 is juris tantum and not juris 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 his own negligence 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-contractual culpa based 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 of status. 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 the vinculum
juris, whereas in contractual relations the vinculum exists
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 facie to warrant a recovery.
As a general rule . . . it is logical that in case of extracontractual 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 between culpa aquiliana, as the source of an
obligation, and culpa contractual as a mere incident to the
performance of a contract has frequently been recognized by
the supreme court of Spain. (Sentencias of June 27, 1894;
November 20, 1896; and December 13, 1896.) In the decisions
of November 20, 1896, it appeared that plaintiff's action
arose ex contractu, but that defendant sought to avail himself
of the provisions of article 1902 of the Civil Code as a defense.
The Spanish Supreme Court rejected defendant's contention,
saying:
These are not cases of injury caused, without any
pre-existing obligation, by fault or negligence, such as
those to which article 1902 of the Civil Code relates,

but of damages caused by the defendant's failure to

carry out the undertakings imposed by the
contracts . . . .
A brief review of the earlier decision of this court involving the
liability of employers for damage done by the negligent acts of
their servants will show that in no case has the court ever
decided that the negligence of the defendant's servants has
been held to constitute a defense to an action for damages for
breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court
held that the owner of a carriage was not liable for the
damages caused by the negligence of his driver. In that case
the court commented on the fact that no evidence had been
adduced in the trial court that the defendant had been
negligent in the employment of the driver, or that he had any
knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania
Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant for
damages caused by the loss of a barge belonging to plaintiff
which was allowed to get adrift by the negligence of
defendant's servants in the course of the performance of a
contract of towage. The court held, citing Manresa (vol. 8, pp.
29, 69) that if the "obligation of the defendant grew out of a
contract made between it and the plaintiff . . . we do not think
that the provisions of articles 1902 and 1903 are applicable to
the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374),
plaintiff sued the defendant to recover damages for the
personal injuries caused by the negligence of defendant's
chauffeur while driving defendant's automobile in which
defendant was riding at the time. The court found that the
damages were caused by the negligence of the driver of the
automobile, but held that the master was not liable, although
he was present at the time, saying:
. . . unless the negligent acts of the driver are
continued for a length of time as to give the owner a
reasonable opportunity to observe them and to direct
the driver to desist therefrom. . . . The act complained
of must be continued in the presence of the owner for
such length of time that the owner by his
acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach
Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that the court
rested its conclusion as to the liability of the defendant upon
article 1903, although the facts disclosed that the injury
complaint of by plaintiff constituted a breach of the duty to him
arising out of the contract of transportation. The express
ground of the decision in this case was that article 1903, in
dealing with the liability of a master for the negligent acts of his
servants "makes the distinction between private individuals and
public enterprise;" that as to the latter the law creates a
rebuttable presumption of negligence in the selection or

direction of servants; and that in the particular case the

presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the
court treated plaintiff's action as though founded in tort rather
than as based upon the breach of the contract of carriage, and
an examination of the pleadings and of the briefs shows that
the questions of law were in fact discussed upon this theory.
Viewed from the standpoint of the defendant the practical
result must have been the same in any event. The proof
disclosed beyond doubt that the defendant's servant was
grossly negligent and that his negligence was the proximate
cause of plaintiff's injury. It also affirmatively appeared that
defendant had been guilty of negligence in its failure to
exercise proper discretion in the direction of the servant.
Defendant was, therefore, liable for the injury suffered by
plaintiff, whether the breach of the duty were to be regarded as
constituting culpa aquiliana or culpa contractual. As Manresa
points out (vol. 8, pp. 29 and 69) whether negligence occurs an
incident in the course of the performance of a contractual
undertaking or its itself the source of an extra-contractual
undertaking obligation, its essential characteristics are
identical. There is always an act or omission productive of
damage due to carelessness or inattention on the part of the
defendant. Consequently, when the court holds that a
defendant is liable in damages for having failed to exercise due
care, either directly, or in failing to exercise proper care in the
selection and direction of his servants, the practical result is
identical in either case. Therefore, it follows that it is not to be
inferred, because the court held in the Yamada case that
defendant was liable for the damages negligently caused by its
servants to a person to whom it was bound by contract, and
made reference to the fact that the defendant was negligent in
the selection and control of its servants, that in such a case the
court would have held that it would have been a good defense
to the action, if presented squarely upon the theory of the
breach of the contract, for defendant to have proved that it did
in fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing
the attention to the relative spheres of contractual and extracontractual obligations. The field of non- contractual obligation
is much more broader than that of contractual obligations,
comprising, as it does, the whole extent of juridical human
relations. These two fields, figuratively speaking, concentric;
that is to say, the mere fact that a person is bound to another
by contract does not relieve him from extra-contractual liability
to such person. When such a contractual relation exists the
obligor may break the contract under such conditions that the
same act which constitutes the source of an extra-contractual
obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by
implication, the duty to carry him in safety and to provide safe
means of entering and leaving its trains (civil code, article
1258). That duty, being contractual, was direct and immediate,
and its non-performance could not be excused by proof that
the fault was morally imputable to defendant's servants.

The railroad company's defense involves the assumption that

even granting that the negligent conduct of its servants in
placing an obstruction upon the platform was a breach of its
contractual obligation to maintain safe means of approaching
and leaving its trains, the direct and proximate cause of the
injury suffered by plaintiff was his own contributory negligence
in failing to wait until the train had come to a complete stop
before alighting. Under the doctrine of comparative negligence
announced in the Rakes case (supra), if the accident was
caused by plaintiff's own negligence, no liability is imposed
upon defendant's negligence and plaintiff's negligence merely
contributed to his injury, the damages should be apportioned. It
is, therefore, important to ascertain if defendant was in fact
guilty of negligence.
It may be admitted that had plaintiff waited until the train had
come to a full stop before alighting, the particular injury
suffered by him could not have occurred. Defendant contends,
and cites many authorities in support of the contention, that it is
negligence per se for a passenger to alight from a moving
train. We are not disposed to subscribe to this doctrine in its
absolute form. We are of the opinion that this proposition is too
badly stated and is at variance with the experience of everyday life. In this particular instance, that the train was barely
moving when plaintiff alighted is shown conclusively by the fact
that it came to stop within six meters from the place where he
stepped from it. Thousands of person alight from trains under
these conditions every day of the year, and sustain no injury
where the company has kept its platform free from dangerous
obstructions. There is no reason to believe that plaintiff would
have suffered any injury whatever in alighting as he did had it
not been for defendant's negligent failure to perform its duty to
provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this
subject is that expressed in Thompson's work on Negligence
(vol. 3, sec. 3010) as follows:
The test by which to determine whether the
passenger has been guilty of negligence in attempting
to alight from a moving railway train, is that of ordinary
or reasonable care. It is to be considered whether an
ordinarily prudent person, of the age, sex and
condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed
by the evidence. This care has been defined to be,
not the care which may or should be used by the
prudent man generally, but the care which a man of
ordinary prudence would use under similar
circumstances, to avoid injury." (Thompson,
Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this
court in Picart vs. Smith (37 Phil. rep., 809), we may say that
the test is this; Was there anything in the circumstances
surrounding the plaintiff at the time he alighted from the train
which would have admonished a person of average prudence
that to get off the train under the conditions then existing was
dangerous? If so, the plaintiff should have desisted from

alighting; and his failure so to desist was contributory

negligence.1awph!l.net
As the case now before us presents itself, the only fact from
which a conclusion can be drawn to the effect that plaintiff was
guilty of contributory negligence is that he stepped off the car
without being able to discern clearly the condition of the
platform and while the train was yet slowly moving. In
considering the situation thus presented, it should not be
overlooked that the plaintiff was, as we find, ignorant of the fact
that the obstruction which was caused by the sacks of melons
piled on the platform existed; and as the defendant was bound
by reason of its duty as a public carrier to afford to its
passengers facilities for safe egress from its trains, the plaintiff
had a right to assume, in the absence of some circumstance to
warn him to the contrary, that the platform was clear. The
place, as we have already stated, was dark, or dimly lighted,
and this also is proof of a failure upon the part of the defendant
in the performance of a duty owing by it to the plaintiff; for if it
were by any possibility concede that it had right to pile these
sacks in the path of alighting passengers, the placing of them
adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the
part of the plaintiff in this case the following circumstances are
to be noted: The company's platform was constructed upon a
level higher than that of the roadbed and the surrounding
ground. The distance from the steps of the car to the spot
where the alighting passenger would place his feet on the
platform was thus reduced, thereby decreasing the risk
incident to stepping off. The nature of the platform, constructed
as it was of cement material, also assured to the passenger a
stable and even surface on which to alight. Furthermore, the
plaintiff was possessed of the vigor and agility of young
manhood, and it was by no means so risky for him to get off
while the train was yet moving as the same act would have
been in an aged or feeble person. In determining the question
of contributory negligence in performing such act that is to
say, whether the passenger acted prudently or recklessly
the age, sex, and physical condition of the passenger are
circumstances necessarily affecting the safety of the
passenger, and should be considered. Women, it has been
observed, as a general rule are less capable than men of
alighting with safety under such conditions, as the nature of
their wearing apparel obstructs the free movement of the limbs.
Again, it may be noted that the place was perfectly familiar to
the plaintiff as it was his daily custom to get on and of the train
at this station. There could, therefore, be no uncertainty in his
mind with regard either to the length of the step which he was
required to take or the character of the platform where he was
alighting. Our conclusion is that the conduct of the plaintiff in
undertaking to alight while the train was yet slightly under way
was not characterized by imprudence and that therefore he
was not guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the
accident, was earning P25 a month as a copyist clerk, and that
the injuries he has suffered have permanently disabled him
from continuing that employment. Defendant has not shown
that any other gainful occupation is open to plaintiff. His

expectancy of life, according to the standard mortality tables, is

approximately thirty-three years. We are of the opinion that a
fair compensation for the damage suffered by him for his
permanent disability is the sum of P2,500, and that he is also
entitled to recover of defendant the additional sum of P790.25
for medical attention, hospital services, and other incidental
expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is
hereby rendered plaintiff for the sum of P3,290.25, and for the
costs of both instances. So ordered.

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO.,
INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN
and GLORIA ESTEBAN, respondents.

night along the excavated area to warn the traveling public of

the presence of excavations. 5
On October 1, 1974, the trial court rendered a decision in favor
of private respondents, the decretal part of which reads:
IN VIEW OF THE FOREGOING
considerations the defendant Philippine Long
Distance Telephone Company is hereby
ordered (A) to pay the plaintiff Gloria
Esteban the sum of P20,000.00 as moral
damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the
sum of P2,000.00 as moral damages and
P500.00 as exemplary damages, with legal
rate of interest from the date of the filing of
the complaint until fully paid. The defendant
is hereby ordered to pay the plaintiff the sum
of P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby
ordered to reimburse whatever amount the
defendant-third party plaintiff has paid to the
plaintiff. With costs against the defendant. 6

REGALADO, J.:
This case had its inception in an action for damages instituted
in the former Court of First Instance of Negros Occidental 1 by
private respondent spouses against petitioner Philippine Long
Distance Telephone Company (PLDT, for brevity) for the
injuries they sustained in the evening of July 30, 1968 when
their jeep ran over a mound of earth and fell into an open
trench, an excavation allegedly undertaken by PLDT for the
installation of its underground conduit system. The complaint
alleged that respondent Antonio Esteban failed to notice the
open trench which was left uncovered because of the creeping
darkness and the lack of any warning light or signs. As a result
of the accident, respondent Gloria Esteban allegedly sustained
injuries on her arms, legs and face, leaving a permanent scar
on her cheek, while the respondent husband suffered cut lips.
In addition, the windshield of the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention that the
injuries sustained by respondent spouses were the result of
their own negligence and that the entity which should be held
responsible, if at all, is L.R. Barte and Company (Barte, for
short), an independent contractor which undertook the
construction of the manhole and the conduit
system. 3 Accordingly, PLDT filed a third-party complaint
against Barte alleging that, under the terms of their agreement,
PLDT should in no manner be answerable for any accident or
injuries arising from the negligence or carelessness of Barte or
any of its employees. 4 In answer thereto, Barte claimed that it
was not aware nor was it notified of the accident involving
respondent spouses and that it had complied with the terms of
its contract with PLDT by installing the necessary and
appropriate standard signs in the vicinity of the work site, with
barricades at both ends of the excavation and with red lights at

From this decision both PLDT and private respondents

appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the
Court of Appeals rendered a decision in said appealed case,
with Justice Corazon Juliano Agrava as ponente, reversing the
decision of the lower court and dismissing the complaint of
respondent spouses. It held that respondent Esteban spouses
were negligent and consequently absolved petitioner PLDT
from the claim for damages. 7 A copy of this decision was
received by private respondents on October 10, 1979. 8 On
October 25, 1979, said respondents filed a motion for
reconsideration dated October 24, 1979. 9 On January 24,
1980, the Special Ninth Division of the Court of Appeals denied
said motion for reconsideration.10 This resolution was received
by respondent spouses on February 22, 1980. 11
On February 29, 1980, respondent Court of Appeals received
private respondents' motion for leave of court to file a second
motion for reconsideration, dated February 27, 1980. 12 On
March 11, 1980, respondent court, in a resolution likewise
penned by Justice Agrava, allowed respondents to file a
second motion for reconsideration, within ten (10) days from
notice thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for
reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or
motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of the
divergent opinions on the resolution of the second motion for
reconsideration, designated two additional justices to form a

division of five. 16 On September 3, 1980, said division of five

promulgated its resolution, penned by Justice Mariano A. Zosa,
setting aside the decision dated September 25, 1979, as well
as the resolution dated, January 24,1980, and affirming in
toto the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion to set
aside and/or for reconsideration of the resolution of September
3, 1980, contending that the second motion for reconsideration
of private respondent spouses was filed out of time and that
the decision of September 25, 1979 penned by Justice Agrava
was already final. It further submitted therein that the
relationship of Barte and petitioner PLDT should be viewed in
the light of the contract between them and, under the
independent contractor rule, PLDT is not liable for the acts of
an independent contractor. 18 On May 11, 1981, respondent
Court of Appeals promulgated its resolution denying said
motion to set aside and/or for reconsideration and affirming in
toto the decision of the lower court dated October 1, 1974. 19
Coming to this Court on a petition for review
on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private
respondents' second motion for reconsideration on the ground
that the decision of the Special Second Division, dated
September 25, 1979, and the resolution of the Special Ninth
Division, dated January 24, 1980, are already final, and on the
additional ground that said second motion for reconsideration
is pro forma.
2. Respondent court erred in reversing the aforesaid decision
and resolution and in misapplying the independent contractor
rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the
respondent court, as shown by the records and admitted by
both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was
rendered by the Court of Appeals with
Justice Agrava asponente;
(b) October 10, 1979, a copy of said decision
was received by private respondents;
(c) October 25, 1979, a motion for
reconsideration was filed by private
respondents;
(d) January 24, 1980, a resolution was
issued denying said motion for
reconsideration;
(e) February 22, 1980, a copy of said denial
resolution was received by private
respondents;

(f) February 29, 1980, a motion for leave to

file a second motion for reconsideration was
filed by private respondents
(g) March 7, 1980, a second motion for
reconsideration was filed by private
respondents;
(h) March 11, 1980, a resolution was issued
allowing respondents to file a second motion
for reconsideration within ten (10) days from
receipt; and
(i) September 3, 1980, a resolution was
issued, penned by Justice Zosa, reversing
the original decision dated September 25,
1979 and setting aside the resolution dated
January 24, 1980.
From the foregoing chronology, we are convinced that both the
motion for leave to file a second motion for reconsideration
and, consequently, said second motion for reconsideration
itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural
governance at the time, provided that a second motion for
reconsideration may be presented within fifteen (15) days from
notice of the order or judgment deducting the time in which the
first motion has been pending. 20 Private respondents having
filed their first motion for reconsideration on the last day of the
reglementary period of fifteen (15) days within which to do so,
they had only one (1) day from receipt of the order denying
said motion to file, with leave of court, a second motion for
reconsideration. 21 In the present case, after their receipt on
February 22, 1980 of the resolution denying their first motion
for reconsideration, private respondents had two remedial
options. On February 23, 1980, the remaining one (1) day of
the aforesaid reglementary period, they could have filed a
motion for leave of court to file a second motion for
reconsideration, conceivably with a prayer for the extension of
the period within which to do so. On the other hand, they could
have appealed through a petition for review on certiorari to this
Court within fifteen (15) days from February 23,
1980. 22 Instead, they filed a motion for leave to file a second
motion 'for reconsideration on February 29, 1980, and said
second motion for reconsideration on March 7, 1980, both of
which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the
original fifteen (15) day period, the running of which was
suspended during the pendency of the first motion for
reconsideration, the Court of Appeals could no longer validly
take further proceedings on the merits of the case, much less
to alter, modify or reconsider its aforesaid decision and/or
resolution. The filing of the motion for leave to file a second
motion for reconsideration by herein respondents on February
29, 1980 and the subsequent filing of the motion itself on
March 7, 1980, after the expiration of the reglementary period
to file the same, produced no legal effects. Only a motion for

re-hearing or reconsideration filed in time shall stay the final

order or judgment sought to be re-examined. 23
The consequential result is that the resolution of respondent
court of March 11, 1980 granting private respondents'
aforesaid motion for leave and, giving them an extension of ten
(10) days to file a second motion for reconsideration, is null
and void. The period for filing a second motion for
reconsideration had already expired when private respondents
sought leave to file the same, and respondent court no longer
had the power to entertain or grant the said motion. The
aforesaid extension of ten (10) days for private respondents to
file their second motion for reconsideration was of no legal
consequence since it was given when there was no more
period to extend. It is an elementary rule that an application for
extension of time must be filed prior to the expiration of the
period sought to be extended. 24 Necessarily, the discretion of
respondent court to grant said extension for filing a second
motion for reconsideration is conditioned upon the timeliness of
the motion seeking the same.
No appeal having been taken seasonably, the respondent
court's decision, dated September 25, 1979, became final and
executory on March 9, 1980. The subsequent resolutions of
respondent court, dated March 11, 1980 and September 3,
1980, allowing private respondents to file a second motion for
reconsideration and reversing the original decision are null and
void and cannot disturb the finality of the judgment nor restore
jurisdiction to respondent court. This is but in line with the
accepted rule that once a decision has become final and
executory it is removed from the power and jurisdiction of the
court which rendered it to further alter or amend, much less
revoke it. 25 The decision rendered anew is null and void. 26 The
court's inherent power to correct its own errors should be
exercised before the finality of the decision or order sought to
be corrected, otherwise litigation will be endless and no
question could be considered finally settled. Although the
granting or denial of a motion for reconsideration involves the
exercise of discretion, 27 the same should not be exercised
whimsically, capriciously or arbitrarily, but prudently in
conformity with law, justice, reason and equity. 28
Prescinding from the aforesaid procedural lapses into the
substantive merits of the case, we find no error in the findings
of the respondent court in its original decision that the accident
which befell private respondents was due to the lack of
diligence of respondent Antonio Esteban and was not
imputable to negligent omission on the part of petitioner PLDT.
Such findings were reached after an exhaustive assessment
and evaluation of the evidence on record, as evidenced by the
respondent court's resolution of January 24, 1980 which we
quote with approval:
First. Plaintiff's jeep was running along the
inside lane of Lacson Street. If it had
remained on that inside lane, it would not
have hit the ACCIDENT MOUND.

Exhibit B shows, through the tiremarks, that

the ACCIDENT MOUND was hit by the jeep
swerving from the left that is, swerving from
the inside lane. What caused the swerving is
not disclosed; but, as the cause of the
accident, defendant cannot be made liable
for the damages suffered by plaintiffs. The
accident was not due to the absence of
warning signs, but to the unexplained abrupt
swerving of the jeep from the inside lane.
That may explain plaintiff-husband's
insistence that he did not see the ACCIDENT
MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the
inside lane before it swerved to hit the
ACCIDENT MOUND could have been
corroborated by a picture showing Lacson
Street to the south of the ACCIDENT
MOUND.
It has been stated that the ditches along
Lacson Street had already been covered
except the 3 or 4 meters where the
ACCIDENT MOUND was located. Exhibit B1 shows that the ditches on Lacson Street
north of the ACCIDENT MOUND had already
been covered, but not in such a way as to
allow the outer lane to be freely and
conveniently passable to vehicles. The
situation could have been worse to the south
of the ACCIDENT MOUND for which reason
no picture of the ACCIDENT MOUND facing
south was taken.
Third. Plaintiff's jeep was not running at 25
kilometers an hour as plaintiff-husband
claimed. At that speed, he could have braked
the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not
have climbed the ACCIDENT MOUND
several feet as indicated by the tiremarks in
Exhibit B. The jeep must have been running
quite fast. If the jeep had been braked at 25
kilometers an hour, plaintiff's would not have
been thrown against the windshield and they
would not have suffered their injuries.
Fourth. If the accident did not happen
because the jeep was running quite fast on
the inside lane and for some reason or other
it had to swerve suddenly to the right and
had to climb over the ACCIDENT MOUND,
then plaintiff-husband had not exercised the
diligence of a good father of a family to avoid
the accident. With the drizzle, he should not
have run on dim lights, but should have put
on his regular lights which should have made
him see the ACCIDENT MOUND in time. If

he was running on the outside lane at 25

kilometers an hour, even on dim lights, his
failure to see the ACCIDENT MOUND in time
to brake the car was negligence on his part.
The ACCIDENT MOUND was relatively big
and visible, being 2 to 3 feet high and 1-1/2
feet wide. If he did not see the ACCIDENT
MOUND in time, he would not have seen
any warning sign either. He knew of the
existence and location of the ACCIDENT
MOUND, having seen it many previous
times. With ordinary precaution, he should
have driven his jeep on the night of the
accident so as to avoid hitting the
ACCIDENT MOUND. 29

medical report from the hospital where private respondents

were allegedly treated have not even been satisfactorily
explained.
As aptly observed by respondent court in its aforecited
extended resolution of January 24, 1980
(a) There was no third party eyewitness of
the accident. As to how the accident
occurred, the Court can only rely on the
testimonial evidence of plaintiffs themselves,
and such evidence should be very carefully
evaluated, with defendant, as the party being
charged, being given the benefit of any
doubt. Definitely without ascribing the same
motivation to plaintiffs, another person could
have deliberately engineered a similar
accident in the hope and expectation that the
Court can grant him substantial moral and
exemplary damages from the big corporation
that defendant is. The statement is made
only to stress the disadvantageous position
of defendant which would have extreme
difficulty in contesting such person's claim. If
there were no witness or record available
from the police department of Bacolod,
defendant would not be able to determine for
itself which of the conflicting testimonies of
plaintiffs is correct as to the report or nonreport of the accident to the police
department. 32

The above findings clearly show that the negligence of

respondent Antonio Esteban was not only contributory to his
injuries and those of his wife but goes to the very cause of the
occurrence of the accident, as one of its determining factors,
and thereby precludes their right to recover damages. 30 The
perils of the road were known to, hence appreciated and
assumed by, private respondents. By exercising reasonable
care and prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged negligence
on the part of petitioner.
The presence of warning signs could not have completely
prevented the accident; the only purpose of said signs was to
inform and warn the public of the presence of excavations on
the site. The private respondents already knew of the presence
of said excavations. It was not the lack of knowledge of these
excavations which caused the jeep of respondents to fall into
the excavation but the unexplained sudden swerving of the
jeep from the inside lane towards the accident mound. As
opined in some quarters, the omission to perform a duty, such
as the placing of warning signs on the site of the excavation,
constitutes the proximate cause only when the doing of the
said omitted act would have prevented the injury. 31 It is basic
that private respondents cannot charge PLDT for their injuries
where their own failure to exercise due and reasonable care
was the cause thereof. It is both a societal norm and necessity
that one should exercise a reasonable degree of caution for his
own protection. Furthermore, respondent Antonio Esteban had
the last clear chance or opportunity to avoid the accident,
notwithstanding the negligence he imputes to petitioner PLDT.
As a resident of Lacson Street, he passed on that street almost
everyday and had knowledge of the presence and location of
the excavations there. It was his negligence that exposed him
and his wife to danger, hence he is solely responsible for the
consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of
Appeals in its original decision that there was insufficient
evidence to prove any negligence on the part of PLDT. We
have for consideration only the self-serving testimony of
respondent Antonio Esteban and the unverified photograph of
merely a portion of the scene of the accident. The absence of a
police report of the incident and the non-submission of a

A person claiming damages for the negligence of another has

the burden of proving the existence of such fault or negligence
causative thereof. The facts constitutive of negligence must be
affirmatively established by competent evidence. 33 Whosoever
relies on negligence for his cause of action has the burden in
the first instance of proving the existence of the same if
contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals,
dated March 11, 1980 and September 3,1980, are hereby SET
ASIDE. Its original decision, promulgated on September
25,1979, is hereby REINSTATED and AFFIRMED.
SO ORDERED.

G.R. No. 45985 May 18, 1990

CHINA AIR LINES, LTD., petitioner,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN, PHILIPPINE
AIR LINES, INC. and ROBERTO ESPIRITU,respondents.
G.R. No. 46036 May 18, 1990

PHILIPPINE AIR LINES, INC. and ROBERTO

ESPIRITU, petitioners,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN and CHINA AIR
LINES, LTD., respondents.
Balgos & Perez Law Offices for petitioner China Air Lines, Ltd.
Siguion Reyna, Montecillo & Ongsiako for petitioners in G.R.
No. 46036.
Syquia Law Offices for Jose Pagsibigan.

REGALADO, J.:
These consolidated petitions seek the review of the decision of
respondent court in CA-G.R. No. 53023-R entitled "Jose E.
Pagsibigan, Plaintiff-Appellant, vs. Philippine Air Lines, Inc. and
Roberto Espiritu, Defendants-Appellants; China Air Lines, Ltd.,
Defendant-Appellee," 1 the dispositive portion of which
declares:
WHEREFORE, except for a modification of
the judgment in the sense that the award of
P20,000.00 in favor of the plaintiff shall be in
the concept of nominal damages instead of
exemplary damages, and that defendant
China Air Lines, Ltd. shall likewise be liable
with its two co-defendants in a joint and
solidary capacity, the judgment appealed
from is hereby affirmed in all other respects,
without costs. 2
The challenged decision of respondent court contains a
synthesis of the facts that spawned these cases and the
judgment of the court a quo which it affirmed with
modifications, thus:
On June 4, 1968, plaintiff Jose E.
Pagsibigan, then Vice-President and
General Manager of Rentokil (Phils.) Inc., a
local firm dealing in insecticides, pesticides
and related services appurtenant thereto,
purchased a plane ticket for a Manila-TaipeiHongkong-Manila flight from the Transaire
Travel Agency. The said agency, through its
Cecille Baron, contacted the Manila Hotel
branch of defendant Philippine Air Lines
which at that time was a sales and ticketing
agent of defendant China Air lines. On June
6, 1968, PAL, through its ticketing clerk
defendant Roberto Espiritu, cut and issued
PAL Ticket No. 01 7991 for a Manila-TaipeiHongkong-Manila flight. According to the
plane ticket, the plaintiff was booked on CAL
CI Flight No. 812 to depart from Manila for

Taipei on June 10, 1968 at 17:20 hours (5:20

p.m.), Exhibit A.
On June 10, 1968, one hour before the
scheduled time of the flight as stated in his
ticket, the plaintiff arrived at the airport to
check in for CI Flight No. 812. Upon arriving
at the airport, the plaintiff was informed that
the plane he was supposed to take for Taipei
had left at 10:20 in the morning of that day.
The PAL employees at the airport made
appropriate arrangements for the plaintiff to
take PAL's flight to Taipei the following day,
June 11, 1968. The plaintiff took said flight
and arrived in Taipei around noontime of the
said date.
On July 8, 1968, the plaintiff, through
counsel, made formal demand on defendant
PAL, for moral damages in not less than
P125,000.00 for what the plaintiff allegedly
suffered as a result of his failure to take the
flight as stated in his plane ticket. (Exhibit E)
After a series of negotiations among the
plaintiff, PAL and CAL failed to reach an
amicable settlement, the plaintiff instituted
this action in the Court of First Instance of
Rizal on September 22, 1969. In his
complaint, plaintiff prays for the recovery of
P125,000.00 as moral damages and
P25,000.00 for and as attorney's fees. The
moral damages allegedly arose from the
gross negligence of defendant Roberto
Espiritu in stating on the plane ticket that the
time of departure was 17:20 hours, instead
of 10:20 hours which was the correct time of
departure in the revised summer schedule of
CAL. Plaintiff claims that by reason of his
failure to take the plane, he suffered
besmirched reputation, embarrassment,
mental anguish, wounded feelings and
sleepless nights, inasmuch as when he went
to the airport, he was accompanied by his
business associates, close friends and
relatives. He further averred that his trip to
Taipei was for the purpose of conferring with
a certain Peng Siong Lim, President of the
Union Taiwan Chemical Corporation,
scheduled at 9:00 a.m. on June 11, 1968.
Defendant Philippine Air Lines alleged in its
answer that the departure time indicated by
Espiritu in the ticket was furnished and
confirmed by the reservation office of
defendant China Air Lines. It further averred
that CAL had not informed PAL's Manila
Hotel Branch of the revised schedule of its
flight, nor provided it with revised timetable;
that when the travel agency sought to
purchase the ticket for the plaintiff on CAL CI

Flight No. 812 for June 10, 1968, Espiritu

who was then the ticketing clerk on duty,
checked with the reservation office of CAL
on the availability of space, the date and the
time of said flight; that CAL's Dory Chan
informed Espiritu that the departure time of
Flight No. 812 on June 10, 1968 was at 5:20
in the afternoon of said date. PAL asserted a
cross-claim against CAL for attorney's fees
and for reimbursement of whatever amount
the court may adjudge PAL to be liable to the
plaintiff. Defendant Espiritu adopted the
defenses of his co-defendant PAL.
Defendant China Air Lines, for its part,
disclaims liability for the negligence and
incompetence of the employees of PAL. It
avers that it had revised its schedule since
April 1, 1968, the same to be effective on
April 20, 1968, and the said revised schedule
was adopted only after proper petition with
and approval of the Civil Aeronautics Board
of which all airlines, including defendant PAL,
were notified; that both printed copies of the
international timetable and of the
mimeographed notices of the official
schedule and flight departure schedules
were distributed to all its sales agents,
including PAL, that after the effectivity of the
new time schedules, PAL's Manila Hotel
office had been issuing and selling tickets
based on the revised time schedule; and
that, assuming that the plaintiff is entitled to
recover damages, the liability is on PAL and
not on CAL. A cross-claim was likewise
asserted by CAL against its co-defendant
PAL.
After due trial, the Court a quo rendered
judgment laying the blame for the erroneous
entry in the ticket as to the time of departure
to defendant Roberto Espiritu, ticketing
agent of defendant PAL, and that no
employee of CAL contributed to such
erroneous entry. It was further ruled that the
plaintiff had no reason to claim moral
damages but may be entitled to recover
exemplary damages. The dispositive portion
of the decision makes the following
adjudication:
WHEREFORE, premises
considered, judgment is
hereby rendered
sentencing the defendants
Philippine Air Lines, Inc.
and Roberto Espiritu, to
pay to plaintiff Jose
Pagsibigan jointly and
severally, by way of

exemplary damages, the

sum of Twenty Thousand
Pesos (P20,000.00) plus
Two Thousand Pesos
(P2,000.00) as
reimbursement for
attorney's fees and the
costs.
The complaint is
dismissed with respect to
the defendant China Air
Lines, Ltd. The cross-claim
filed by defendant PAL and
Espiritu against defendant
CAL as well as the crossclaim filed by the
defendant CAL against
defendant PAL and
Espiritu are also hereby
dismissed. 3
From said decision of the court below, all the parties, except
China Air Lines, Ltd. appealed to respondent court which,
however, sustained the ruling of the trial court denying
Pagsibigan's claim for moral damages. It concluded that
Roberto Espiritu did not act with malice or in bad faith in
making a wrong entry of the time of departure on the ticket,
and that the mistake committed by Espiritu appears to be an
honest one done in good faith.
Respondent court also ruled out the claim for exemplary
damages for lack of legal basis. Nonetheless, as earlier noted,
it awarded Pagsibigan P20,000.00 as nominal damages, under
Article 2221 of the Civil Code, for the vindication of a legal
wrong committed against him. As regards the liability of the
parties, respondent court held:
There can be little question as to the liability
of PAL and Espiritu for the damage caused
to the plaintiff due to the erroneous entry in
the plane ticket made by the latter. They
seek to justify the erroneous statement as to
the time of departure on the ground that
such was the time given by Dory Chan to
Espiritu when the latter called up for the
reservation in favor of plaintiff. Aside from
the fact that Dory Chan had vigorously
disclaimed having given such information to
Espiritu, We are convinced that, as the trial
court had found, CAL had no share in the
error committed by Espiritu in indicating the
time of departure of Flight No. 812. PAL had
shown through the testimony of Carmen
Ibazeta Gallaga, ticket representative of PAL
at the Manila Hotel Office, that they received
circulars and timetables of airlines in the PAL
main office. It further appears that on two
occasions, defendant PAL cut and issued

tickets for CAL based on the new schedule

even before June 10, 1968. As a matter of
fact, the other entries of time departures in
the ticket issued to the plaintiff are in
accordance with the revised schedule, and
that the only error therein was with respect to
the departure from Manila on June 10, 1968.
However, in proving that the fault lied with
Espiritu, defendant CAL derives no solace
nor gains an advantage. It may not claim
exemption from liability by reason thereof.
Espiritu was an employee of PAL and
whatever negligence was committed by him
is attributable to PAL. It is an admitted fact
that PAL is an authorized agent of CAL. In
this relationship, the responsibility of
defendant PAL for the tortious act of its agent
or representative is inescapable. . . .
xxx xxx xxx
A similar principle is recognized in our Civil
Code in its Art. 2180 . . . . Unlike in the
doctrine ofrespondeat superior, however, the
Civil Code permits the employer to escape
this liability upon proof of having observed all
the diligence of a good father of a family to
prevent the damage. We find the evidence of
defendant CAL to be insufficient to
overcome the presumption of negligence on
its part for the act done by defendant
Roberto Espiritu. (Emphasis supplied)
The liability for the damage sustained by the
plaintiff should, therefore, be borne by all of
the defendants in a joint and solidary
capacity (Art. 2194). The liability of an
employer under Art. 2180 is primary and
direct. . . .
xxx xxx xxx
It appearing that defendant CAL, as
employer or principal, did not contribute to
the negligence committed by defendants
PAL and Roberto Espiritu, its liability to the
plaintiff could be passed on to said
defendants. Defendant CAL, however, did
not take an appeal and did not, therefore,
take exception to the dismissal of its crossclaim against defendants PAL and Espiritu.
This serves as an obstacle for a rendition of
judgment favorable to CAL on its said
counterclaim. 4
In its petition for review on certiorari in G.R. No. L-45985,
petitioner China Air Lines, Ltd. (CAL) relied on the following
grounds:

1. A principal cannot be held liable, much

less solidarily, for the negligence of the subagent, where the former never participated
in, ratified or authorized the latter's act or
omission.
2. Dismissal of the cross-claim of petitioner
against the private respondents Philippine
Air Lines, Inc. and Roberto Espiritu will not
prevent the release of the petitioner from
liability to the private respondent Pagsibigan.
3. The award of damages was unwarranted
both legally and factually. 5
On their part, petitioners Philippine Air Lines, Inc. (PAL) and
Roberto Espiritu made the following submissions in G.R. No. L46036, to wit:
1. The respondent Court of Appeals erred in
not holding that respondent China Air Lines,
Ltd., being the principal, is solely liable to
respondent Pagsibigan.
2. The respondent Court of Appeals erred in
awarding respondent Pagsibigan the sum of
P20,000.00 as nominal damages. 6
In G.R. No. L-45985, respondent Pagsibigan contends, by way
of refutation, that CAL's liability is based on breach of contract
of transportation which was the proximate result of the
negligence and/or error committed by PAL and Espiritu; that
even assuming that CAL has no share in the negligence of PAL
and Espiritu, the liability of CAL does not cease upon proof that
it exercised all the diligence of a good father of a family in the
selection and supervision of its employees. Traversing such
contentions, CAL argues that it can not be made liable under
Article 2180 of the Civil Code because of the absence of
employer-employee relationship between it and PAL.
On the other hand, in G.R. No. L-46036, respondent
Pagsibigan claims that PAL is liable under Article 1909 of the
said code which holds an agent responsible not only for fraud
but also for negligence which shall be judged with more or less
rigor by the courts, according to whether the agency was or
was not for a compensation. PAL, however, maintains that for
lack of privity with Pagsibigan, the suit for breach of contract
should have been directed against CAL.
What surfaces as a procedural maneuver taken by respondent
Pagsibigan in the course of the proceedings in these cases
has confused the real issues in the controversy subject of both
petitions before us.
Respondent Pagsibigan has opted to seek redress by pursuing
two remedies at the same time, that is, to enforce the civil
liability of CAL for breach of contract and, likewise, to recover
from PAL and Espiritu for tort or culpa aquiliana. What he has
overlooked is the proscription against double recovery under

Article 2177 of the Civil Code which, while not preventing

recourse to any appropriate remedy, prevents double relief for
a single wrong.

party does not have to prove that the common carrier was at
fault or was negligent. All he has to prove is the existence of
the contract and the fact of its non-performance by the carrier. 8

To avoid inequitable effects under such confluence of

remedies, the true nature of the action instituted by respondent
Pagsibigan must be determined. A careful perusal of the
complaint of respondent Pagsibigan will readily disclose that
the allegations thereof clearly and unmistakably make out a
case for a quasi-delict in this wise:

The records disclose that the trial court delved much into the
issues of who was at fault, and its decision is primarily
anchored on its factual findings regarding the civil liability
arising from culpa aquiliana of the erring party, to this effect:

4. That at all pertinent times particularly in

June of 1968, defendant China Air Lines Ltd.
has been operating regular scheduled flights
to and from Manila, and has offered
accommodations thereon through, among
others, defendant PAL as its authorized
sales agent and/or ticketing agent, such that
China Airlines Ltd. is here impleaded as
being the principal of defendant PAL;
5. That at all pertinent times, particularly in
June of 1968, defendant Roberto Espiritu
has been in the employ of defendant PAL at
its sales counter at the PAL Manila Hotel
branch office and is here impleaded as
defendant as being the proximate malfeasor
in this cause of action;
xxx xxx xxx
12. That plaintiff missed the initial ManilaTaipei leg (CI Flight 812) on June 10, 1968,
as set forth in his ticket (Annex "A") solely
and exclusively by reason of gross
incompetence and inexcusable
negligence amounting to bad faith of
defendant PAL acting, through its sales
representative, the defendant Roberto
Espiritu, of its Manila Hotel branch office
in the discharge of its duties as sales agent
and/or ticketing agent for defendant China
Airlines Ltd. as principal.
13. That as a direct result of culpable
incompetence and negligence of defendant
Roberto Espiritu as sales representative of
defendant PAL, plaintiff was unable to attend
to previously scheduled business
commitments in Taipei . . . resulting in direct
and indirect prejudice to plaintiff that has yet
to be fully assessed; (Emphasis supplied) 7
xxx xxx xxx
Had the intention of respondent Pagsibigan been to maintain
an action based on breach of contract of carriage, he could
have sued CAL alone considering that PAL is not a real party to
the contract. Moreover, in cases of such nature, the aggrieved

Plaintiff said that the erroneous entry in his

ticket which made it appear that his CAL
flight of June 10, 1968 was to be at 5:20 in
the afternoon was due to the fault or
negligence of PAL's Roberto Espiritu, a codefendant herein, as well as the employees
of the defendant CAL. In making CAL coresponsible, plaintiff appears to rely on the
doctrine that the principal is responsible for
the act of an agent done within the scope of
the agency.
There is no proof extant that any of the
employees of PAL had contributed to the
erroneous entry in plaintiffs PAL ticket for
Taipei which placed his time of departure to
5:20 o'clock in the afternoon of June 10,
1968. Only defendant Roberto Espiritu
appears to be solely and exclusively
responsible for such error and therefor the
conclusion becomes inevitable that CAL
must be absolved from any blame because
defendant Roberto Espiritu who committed
the error is not an employee or agent of the
defendant CAL. 9
It, therefore, becomes evident that respondent Pagsibigan,
having sensed that he can not hold CAL liable on aquasidelict, decided on appeal to instead make a sinistral detour, so
to speak, by claiming that his action against CAL is based on a
breach of contract of carriage.
We can not permit respondent Pagsibigan to change his theory
at this stage; it would be unfair to the adverse party who would
have no more opportunity to present further evidence, material
to the new theory, which it could have done had it been aware
earlier of the new theory at the time of the hearing before the
trial court. 10
There is indeed no basis whatsoever to hold CAL liable on
a quasi-delict or culpa aquiliana. As hereinbefore stated, the
court a quo absolved CAL of any liability for fault or negligence.
This finding was shared by respondent court when it concluded
that defendant CAL did not contribute to the negligence
committed by therein defendants-appellants PAL and Roberto
Espiritu.
Respondent Pagsibigan insists that CAL was barred from
proving that it observed due diligence in the selection and
supervision of its employees. This argument is obviously

misplaced. CAL is not the employer of PAL or Espiritu.

In Duavit vs. The Hon. Court of Appeals, et al., 11 we have
stressed the need of first establishing the existence of an
employer-employee relationship before an employer may be
vicariously liable under Article 2180 of the Civil Code.
With respect to PAL and Espiritu, they disclaim any liability on
the theory that the former is merely an agent of CAL and that
the suit should have been directed against CAL alone. There is
no question that the contractual relation between both airlines
is one of agency. Suffice it to say, however, that in an action
premised on the employee's negligence, whereby respondent
Pagsibigan seeks recovery for the resulting damages from
both PAL and Espiritu without qualification, what is sought to
be imposed is the direct and primary liability of PAL as an
employer under said Article 2180.
When an injury is caused by the negligence of an employee,
there instantly arises a presumption of law that there was
negligence on the part of the employer either in the selection of
the employee or in the supervision over him after such
selection. The presumption, however, may be rebutted by a
clear showing on the part of the employer that it has exercised
the care and diligence of a good father of a family in the
selection and supervision of his employee. 12
Hence, to escape solidary liability for the quasidelict committed by Espiritu, it is imperative that PAL must
adduce sufficient proof that it exercised such degree of care.
PAL failed to overcome the presumption. As found by
respondent court, CAL had revised its schedule of flights since
April 1, 1968; that after the Civil Aeronautics Board had
approved the revised schedule of flights, PAL was duly
informed thereof and, in fact, PAL's Manila Hotel branch office
had been issuing and selling tickets based on the revised time
schedule before June 10, 1968.

acting within the scope of their assigned tasks, even though

the former are not engaged in any business or industry.
Under the aforesaid provision, all that is required is that the
employee, by his negligence, committed a quasi-delictwhich
caused damage to another, and this suffices to hold the
employer primarily and solidarity responsible for the tortious
act of the employee. PAL, however, can demand from Espiritu
reimbursement of the amount which it will have to pay the
offended party's claim. 13
On the issue of damages, we agree, except as to the amount,
that nominal damages may be awarded to respondent
Pagsibigan to vindicate the legal wrong committed against him.
It appearing that the wrong committed was immediately
rectified when PAL promptly booked him for the next morning's
flight to Taipei where he arrived before noon of June 11, 1968
and was able to attend his scheduled conference, and
considering the concept and purpose of nominal damages, the
award of P20,000.00 must accordingly be reduced to an
amount equal or at least commensurate to the injury sustained.
WHEREFORE, the decision of respondent Court of Appeals is
MODIFIED accordingly. China Air Lines, Ltd. is hereby
absolved from liability. Philippine Air Lines, Inc. and Roberto
Espiritu are declared jointly and severally liable to pay the sum
of P10,000.00 by way of nominal damages, without prejudice
to the right of Philippine Air Lines, Inc. to recover from Roberto
Espiritu reimbursement of the damages that it may pay
respondent Jose Pagsibigan.
SO ORDERED.

G.R. No. 171636

April 7, 2009

PAL's main defense is that it is only an agent. As a general

proposition, an agent who duly acts as such is not personally
liable to third persons. However, there are admitted exceptions,
as in this case where the agent is being sued for damages
arising from a tort committed by his employee.

NORMAN A. GAID, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

The respondent court found that the mistake committed by

Espiritu was done in good faith. While there is no evidence that
he acted with malice, we can not entirely condone his
actuations. As an employee of PAL, the nature of his functions
requires him to observe for the protection of the interests of
another person that degree of care, precaution and vigilance
which the circumstances justly demand. He committed a clear
neglect of duty.

TINGA, J.:

Ergo, for his negligence, Espiritu is primarily liable to

respondent Pagsibigan under Article 2176 of the Civil Code.
For the failure of PAL to rebut the legal presumption of
negligence in the selection and supervision of its employee, it
is also primarily liable under Article 2180 of the same code
which explicitly provides that employers shall be liable for the
damages caused by their employees and household helpers

DECISION

Before the Court is a petition for review on certiorari1 assailing

the 12 July 2005 Decision2 of the Court of Appeals and its
subsequent Resolution3 denying petitioners motion for
reconsideration.
Petitioner Norman A. Gaid was charged with the crime of
reckless imprudence resulting in homicide in an information
which reads as follow:
That on or about 12:00 high noon of October 25, 2001, infront
of the Laguindingan National High School, Poblacion,
Laguindingan, Misamis Oriental, Philippines and within the
jurisdiction of this Honorable Court, the said accused

mentioned above while driving a passengers jeepney color

white bearing plate no. KVG-771 owned by barangay captain
Levy Etom has no precautionary measure to preempt the
accident, did then and there willfully, unlawfully and feloniously
ran [sic] over Michael Dayata resulting of [sic] his untimely
death as pronounced by the attending physician of Northern
Mindanao Medical Center Hospital, Cagayan de Oro City.
CONTRARY TO LAW.4
Petitioner entered a not guilty plea. Thereafter, trial ensued.
The antecedent facts are undisputed.
At around 12:00 noon on 25 October 2001, petitioner was
driving his passenger jeepney along a two-lane road where the
Laguindingan National High School is located toward the
direction of Moog in Misamis Oriental. His jeepney was filled to
seating capacity.5 At the time several students were coming out
of the school premises.6Meanwhile, a fourteen year-old
student, Michael Dayata (Dayata), was seen by eyewitness
Artman Bongolto (Bongolto) sitting near a store on the left side
of the road. From where he was at the left side of the road,
Dayata raised his left hand to flag down petitioners
jeepney7 which was traveling on the right lane of the
road.8 However, neither did petitioner nor the conductor,
Dennis Mellalos (Mellalos), saw anybody flagging down the
jeepney to ride at that point.9
The next thing Bongalto saw, Dayatas feet was pinned to the
rear wheel of the jeepney, after which, he laid flat on the
ground behind the jeepney.10 Another prosecution witness,
Usaffe Actub (Actub), who was also situated on the left side of
the street but directly in front of the school gate, heard "a
strong impact coming from the jeep sounding as if the driver
forced to accelerate in order to hurdle an obstacle."11 Dayata
was then seen lying on the ground12 and caught in between the
rear tires.13 Petitioner felt that the left rear tire of the jeepney
had bounced and the vehicle tilted to the right side.14
Mellalos heard a shout that a boy was run over, prompting him
to jump off the jeepney to help the victim. Petitioner stopped
and saw Mellalos carrying the body of the victim.15 Mellalos
loaded the victim on a motorcycle and brought him to the
hospital. Dayata was first brought to the Laguindingan Health
Center, but it was closed. Mellalos then proceeded to the El
Salvador Hospital. Upon advice of its doctors, however, Dayata
was brought to the Northern Mindanao Medical Center where
he was pronounced dead on arrival.16
Dr. Tammy Uy issued an autopsy report stating cranio-cerebral
injuries as the cause of death.17 She testified that the head
injuries of Dayata could have been caused by having run over
by the jeepney.18
The Municipal Circuit Trial Court (MCTC) of
Laguindingan19 found petitioner guilty beyond reasonable
doubt of the crime charged. The lower court held petitioner
negligent in his driving considering that the victim was dragged

to a distance of 5.70 meters from the point of impact. He was

also scored for "not stopping his vehicle after noticing that the
jeepneys left rear tire jolted causing the vehicle to tilt towards
the right."20 On appeal, the Regional Trial Court
(RTC)21 affirmed in toto the decision of the MCTC.
The Court of Appeals affirmed the trial courts judgment with
modification in that it found petitioner guilty only of simple
negligence resulting in homicide.1avvphi1.zw+
The Court of Appeals exonerated petitioner from the charge of
reckless imprudence resulting to homicide on the ground that
he was not driving recklessly at the time of the accident.
However, the appellate court still found him to be negligent
when he failed "to promptly stop his vehicle to check what
caused the sudden jotting of its rear tire."22
In its 6 February 2006 Resolution, the Court of Appeals denied
petitioners motion for reconsideration.23
Hence, the instant petition.
Petitioner submits that the Court of Appeals erred in finding
that "there is (sic) absolutely lack of precaution on the part of
the petitioner when he continued even after he had noticed that
the left rear tire and the jeep tilted to its right side."24 Petitioner
stressed that he, in fact, stopped his jeep when its left rear tire
bounced and upon hearing that somebody had been ran over.
Moreover, petitioner asserts that the Court of Appeals
committed a grave abuse of discretion in convicting him of the
offense of simple negligence resulting in homicide. Assuming
arguendo that he failed to promptly stop his vehicle, petitioner
maintains that no prudent man placed in the same situation
could have foreseen the vehicular accident or could have
stopped his vehicle in time when its left rear tire bounced due
to the following reasons: (1) the victim was only a trespasser;
(2) petitioners attention was focused on the road and the
students outside the schools gate; and (3) the jeepney was
fully loaded with passengers and cargoes and it was
impossible for the petitioner to promptly stop his vehicle.25
The Office of the Solicitor-General (OSG) maintained that
petitioner was negligent when he continued to run towards the
direction of Moog, Laguindingan, dragging the victim a few
meters from the point of impact, despite hearing that a child
had been run over.26
The presence or absence of negligence on the part of
petitioner is determined by the operative events leading to the
death of Dayata which actually comprised of two phases or
stages. The first stage began when Dayata flagged down the
jeepney while positioned on the left side of the road and ended
when he was run over by the jeepney. The second stage
covered the span between the moment immediately after the
victim was run over and the point when petitioner put the
jeepney to a halt.
During the first stage, petitioner was not shown to be negligent.

Reckless imprudence consists of voluntarily doing or failing to

do, without malice, an act from which material damage results
by reason of an inexcusable lack of precaution on the part of
the person performing or failing to perform such act.27
In Manzanares v. People,28 this Court convicted petitioner of
the crime of reckless imprudence resulting in multiple homicide
and serious physical injuries when he was found driving the
Isuzu truck very fast before it smashed into a
jeepney.29 Likewise, in Pangonorom v. People,30 a public utility
driver, who was driving very fast, failed to slow down and hit a
swerving car. He was found negligent by this Court.
In the instant case, petitioner was driving slowly at the time of
the accident, as testified to by two eyewitnesses. Prosecution
witness Actub affirmed this fact on cross-examination, thus:

With the foregoing facts, petitioner can not be held liable during
the first stage. Specifically, he cannot be held liable for
reckless imprudence resulting in homicide, as found by the trial
court. The proximate cause of the accident and the death of
the victim was definitely his own negligence in trying to catch
up with the moving jeepney to get a ride.
In the instant case, petitioner had exercised extreme
precaution as he drove slowly upon reaching the vicinity of the
school. He cannot be faulted for not having seen the victim
who came from behind on the left side.
However, the Court of Appeals found petitioner guilty of simple
negligence resulting in homicide for failing to stop driving at the
time when he noticed the bouncing of his vehicle. Verily, the
appellate court was referring to the second stage of the
incident.

ATTY. MACUA:
(to the witness)
Q Mr. Witness, when the passenger jeepney passed
by the gate of the Laguindingan National High School,
is it running slowly, am I correct?
A Yes, he was running slowly.31
The slow pace of the jeepney was seconded by
Mellalos:
Q You testified that you heard somebody outside from
the vehicle shouting that a boy was ran over, am I
correct?
A Yes, Sir.
Q Now, before you heard that shouting, did you
observe any motion from the vehicle?
A The jeep was moving slowly and I noticed that there
was something that [sic] the jeep a little bit bounced
up as if a hump thats the time I heard a shout from
outside.32
Petitioner stated that he was driving at no more than 15
kilometers per hour.33
It appears from the evidence Dayata came from the left side of
the street. Petitioner, who was driving the jeepney on the right
lane, did not see the victim flag him down. He also failed to see
him go near the jeepney at the left side. Understandably,
petitioner was focused on the road ahead. In Dayatas haste to
board the jeep which was then running, his feet somehow got
pinned to the left rear tire, as narrated by Bongolto. Actub only
saw Dayata after he heard a strong impact coming from the
jeep.

Negligence has been defined as the failure to observe for the

protection of the interests of another person that degree of
care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury.34
The elements of simple negligence: are (1) that there is lack of
precaution on the part of the offender; and (2) that the damage
impending to be caused is not immediate or the danger is not
clearly manifest.35
The standard test in determining whether a person is negligent
in doing an act whereby injury or damage results to the person
or property of another is this: could a prudent man, in the
position of the person to whom negligence is attributed,
foresee harm to the person injured as a reasonable
consequence of the course actually pursued? If so, the law
imposes a duty on the actor to refrain from that course or to
take precautions to guard against its mischievous results, and
the failure to do so constitutes negligence. Reasonable
foresight of harm, followed by the ignoring of the admonition
born of this provision, is always necessary before negligence
can be held to exist.36
In Philippine National Construction Corporation v. Court of
Appeals,37 the petitioner was the franchisee that operates and
maintains the toll facilities in the North and South Luzon Toll
Expressways. It failed to exercise the requisite diligence in
maintaining the NLEX safe for motorists. The lighted cans and
lane dividers on the highway were removed even as flattened
sugarcanes lay scattered on the ground. The highway was still
wet from the juice and sap of the flattened sugarcanes. The
petitioner should have foreseen that the wet condition of the
highway would endanger motorists passing by at night or in the
wee hours of the morning.38 Consequently, it was held liable for
damages.
In an American case, Hernandez v. Lukas,39 a motorist
traveling within the speed limit and did all was possible to avoid
striking a child who was then six years old only. The place of
the incident was a neighborhood where children were playing
in the parkways on prior occasions. The court ruled that it must

be still proven that the driver did not exercise due care. The
evidence showed that the driver was proceeding in lawful
manner within the speed limit when the child ran into the street
and was struck by the drivers vehicle. Clearly, this was an
emergency situation thrust upon the driver too suddenly to
avoid.
In this case, the courts below zeroed in on the fact that
petitioner did not stop the jeepney when he felt the bouncing of
his vehicle, a circumstance which the appellate court equates
with negligence. Petitioner contends that he did not
immediately stop because he did not see anybody go near his
vehicle at the time of the incident.40
Assuming arguendo that petitioner had been negligent, it must
be shown that his negligence was the proximate cause of the
accident. Proximate cause is defined as that which, in the
natural and continuous sequence, unbroken by any efficient,
intervening cause, produces the injury, and without which the
result would not have
occurred.41 In order to establish a motorist's liability for the
negligent operation of a vehicle, it must be shown that there
was a direct causal connection between such negligence and
the injuries or damages complained of. Thus, negligence that
is not a substantial contributing factor in the causation of the
accident is not the proximate cause of an injury.42
The head injuries sustained by Dayata at the point of impact
proved to be the immediate cause of his death, as indicated in
the post-mortem findings.43 His skull was crushed as a result of
the accident. Had petitioner immediately stopped the jeepney,
it would still not have saved the life of the victim as the injuries
he suffered were fatal.
The evidence on record do not show that the jeepney dragged
the victim after he was hit and run over by the jeepney. Quite
the contrary, the evidence discloses that the victim was not
dragged at all. In fact, it is the other way around. Bongolto
narrated that after the impact, he saw Dayata left behind the
jeepney.44 Actub saw Dayata in a prone position and bleeding
within seconds after impact.45 Right after the impact, Mellalos
immediately jumped out of the jeepney and saw the victim lying
on the ground.46 The distance of 5.70 meters is the length of
space between the spot where the victim fell to the ground and
the spot where the jeepney stopped as observed by the trial
judge during the ocular inspection at the scene of the
accident.47
Moreover, mere suspicions and speculations that the victim
could have lived had petitioner stopped can never be the basis
of a conviction in a criminal case.48 The Court must be satisfied
that the guilt of the accused had been proven beyond
reasonable doubt.49 Conviction must rest on nothing less than
a moral certainty of the guilt of the accused. The overriding
consideration is not whether the court doubts the innocence of
the accused but whether it entertains doubt as to his guilt.50

Clearly then, the prosecution was not able to establish that the
proximate cause of the victims death was petitioners alleged
negligence, if at all, even during the second stage of the
incident.
If at all again, petitioners failure to render assistance to the
victim would constitute abandonment of ones victim
punishable under Article 275 of the Revised Penal Code.
However, the omission is not covered by the information. Thus,
to hold petitioner criminally liable under the provision would be
tantamount to a denial of due process.
Therefore, petitioner must be acquitted at least on reasonable
doubt. The award of damages must also be deleted pursuant
to Article 2179 of the Civil Code which states that when the
plaintiffs own negligence was the immediate and proximate
cause of his injury, he cannot recover damages.
WHEREFORE, the petition is GRANTED. The decision of the
Court of Appeals dated 12 July 2005 is REVERSED and SET
ASIDE. Petitioner Norman A. Gaid is ACQUITTED of the crime
of Simple Negligence Resulting in Homicide as found by the
Court of Appeals and of the charge of Reckless Imprudence
Resulting in Homicide in Criminal Case No. 1937 of the MCTC
of Laguindingan, Misamis Oriental.
SO ORDERED.

G.R. No. 156037

May 28, 2007

MERCURY DRUG CORPORATION, Petitioner,

vs.
SEBASTIAN M. BAKING, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on
Certiorari1 assailing the Decision2 dated May 30, 2002 and
Resolution dated November 5, 2002 of the Court of Appeals in
CA-G.R. CV No. 57435, entitled "Sebastian M. Baking, plaintiffappellee, versus Mercury Drug Co. Inc., defendant-appellant."
The facts are:
On November 25, 1993, Sebastian M. Baking, respondent,
went to the clinic of Dr. Cesar Sy for a medical check-up. On
the following day, after undergoing an ECG, blood, and
hematology examinations and urinalysis, Dr. Sy found that
respondents blood sugar and triglyceride were above normal
levels. Dr. Sy then gave respondent two medical prescriptions
Diamicron for his blood sugar and Benalize tablets for his
triglyceride.

Respondent then proceeded to petitioner Mercury Drug

Corporation (Alabang Branch) to buy the prescribed medicines.
However, the saleslady misread the prescription for Diamicron
as a prescription for Dormicum. Thus, what was sold to
respondent was Dormicum, a potent sleeping tablet.
Unaware that what was given to him was the wrong medicine,
respondent took one pill of Dormicum on three consecutive
days November 6, 1993 at 9:00 p.m., November 7 at 6:00
a.m., and November 8 at 7:30 a.m.
On November 8 or on the third day he took the medicine,
respondent figured in a vehicular accident. The car he was
driving collided with the car of one Josie Peralta. Respondent
fell asleep while driving. He could not remember anything
about the collision nor felt its impact.
Suspecting that the tablet he took may have a bearing on his
physical and mental state at the time of the collision,
respondent returned to Dr. Sys clinic. Upon being shown the
medicine, Dr. Sy was shocked to find that what was sold to
respondent was Dormicum, instead of the prescribed
Diamicron.
Thus, on April 14, 1994, respondent filed with the Regional
Trial Court (RTC), Branch 80 of Quezon City a complaint for
damages against petitioner, docketed as Civil Case No. Q-9420193.
After hearing, the trial court rendered its Decision dated March
18, 1997 in favor of respondent, thus:
WHEREFORE, premises considered, by preponderance of
evidence, the Court hereby renders judgment in favor of the
plaintiff and against the defendant ordering the latter to pay
mitigated damages as follows:
1. P250,000.00 as moral damages;
2. P20,000.00 as attorneys fees and litigation
expenses;
3. plus % of the cost of the suit.
SO ORDERED.
On appeal, the Court of Appeals, in its Decision, affirmed in
toto the RTC judgment. Petitioner filed a motion for
reconsideration but it was denied in a Resolution dated
November 5, 2002.
Hence, this petition.
Petitioner contends that the Decision of the Court of Appeals is
not in accord with law or prevailing jurisprudence.
Respondent, on the other hand, maintains that the petition
lacks merit and, therefore, should be denied.

The issues for our resolution are:

1. Whether petitioner was negligent, and if so,
whether such negligence was the proximate cause of
respondents accident; and
2. Whether the award of moral damages, attorneys
fees, litigation expenses, and cost of the suit is
justified.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
To sustain a claim based on the above provision, the following
requisites must concur: (a) damage suffered by the plaintiff; (b)
fault or negligence of the defendant; and, (c) connection of
cause and effect between the fault or negligence of the
defendant and the damage incurred by the plaintiff.3
There is no dispute that respondent suffered damages.
It is generally recognized that the drugstore business is imbued
with public interest. The health and safety of the people will be
put into jeopardy if drugstore employees will not exercise the
highest degree of care and diligence in selling medicines.
Inasmuch as the matter of negligence is a question of fact, we
defer to the findings of the trial court affirmed by the Court of
Appeals.
Obviously, petitioners employee was grossly negligent in
selling to respondent Dormicum, instead of the prescribed
Diamicron. Considering that a fatal mistake could be a matter
of life and death for a buying patient, the said employee should
have been very cautious in dispensing medicines. She should
have verified whether the medicine she gave respondent was
indeed the one prescribed by his physician. The care required
must be commensurate with the danger involved, and the skill
employed must correspond with the superior knowledge of the
business which the law demands.41awphi1.nt
Petitioner contends that the proximate cause of the accident
was respondents negligence in driving his car.
We disagree.
Proximate cause is defined as any cause that produces injury
in a natural and continuous sequence, unbroken by any
efficient intervening cause, such that the result would not have
occurred otherwise. Proximate cause is determined from the
facts of each case, upon a combined consideration of logic,
common sense, policy, and precedent.5

Here, the vehicular accident could not have occurred had

petitioners employee been careful in reading Dr. Sys
prescription. Without the potent effects of Dormicum, a
sleeping tablet, it was unlikely that respondent would fall
asleep while driving his car, resulting in a collision.
Complementing Article 2176 is Article 2180 of the same Code
which states:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but also
for those of persons for whom one is responsible.
xxx
The owners and managers 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 the occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged
in any business or industry.
xxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed the
diligence of a good father of a family to prevent damage.
It is thus clear that the employer of a negligent employee is
liable for the damages caused by the latter. When an injury is
caused by the negligence of an employee, there instantly
arises a presumption of the law that there has been negligence
on the part of the employer, either in the selection of his
employee or in the supervision over him, after such selection.
The presumption, however, may be rebutted by a clear
showing on the part of the employer that he has exercised the
care and diligence of a good father of a family in the selection
and supervision of his employee.6 Here, petitioner's failure to
prove that it exercised the due diligence of a good father of a
family in the selection and supervision of its employee will
make it solidarily liable for damages caused by the latter.
As regards the award of moral damages, we hold the same to
be in order. Moral damages may be awarded whenever the
defendants wrongful act or omission is the proximate cause of
the plaintiffs physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury in the cases
specified or analogous to those provided in Article 2219 of the
Civil Code.7
Respondent has adequately established the factual basis for
the award of moral damages when he testified that he suffered

mental anguish and anxiety as a result of the accident caused

by the negligence of petitioners employee.
There is no hard-and-fast rule in determining what would be a
fair and reasonable amount of moral damages, since each
case must be governed by its own peculiar facts. However, it
must be commensurate to the loss or injury suffered.8 Taking
into consideration the attending circumstances here, we are
convinced that the amount awarded by the trial court is
exorbitant. Thus, we reduce the amount of moral damages
from P250,000.00 toP50,000.00 only.
In addition, we also deem it necessary to award exemplary
damages. Article 2229 allows the grant of exemplary damages
by way of example or correction for the public good. As
mentioned earlier, the drugstore business is affected with
public interest. Petitioner should have exerted utmost diligence
in the selection and supervision of its employees. On the part
of the employee concerned, she should have been extremely
cautious in dispensing pharmaceutical products. Due to the
sensitive nature of its business, petitioner must at all times
maintain a high level of meticulousness. Therefore, an award
of exemplary damages in the amount of P25,000.00 is in
order.1awphi1.nt
On the matter of attorneys fees and expenses of litigation, it is
settled that the reasons or grounds for the award thereof must
be set forth in the decision of the court.9 Since the trial courts
decision did not give the basis of the award, the same must be
deleted. In Vibram Manufacturing Corporation v. Manila Electric
Company,10 we held:
Likewise, the award for attorneys fees and litigation expenses
should be deleted. Well-enshrined is that "an award for
attorneys fees must be stated in the text of the courts decision
and not in the dispositive portion only"(Consolidated Bank and
Trust Corporation (Solidbank) v. Court of Appeals, 246 SCRA
193 [1995] and Keng Hua Paper Products, Inc. v. Court of
Appeals, 286 SCRA 257 [1998]). This is also true with the
litigation expenses where the body of the decision discussed
nothing for its basis.
WHEREFORE, we DENY the petition. The challenged
Decision and Resolution of the Court of Appeals in CA-G.R.
CV No. 57435 are AFFIRMED with modification in the sense
that (a) the award of moral damages to respondent is reduced
from P250,000.00 to P50,000.00; (b) petitioner is likewise
ordered to pay said respondent exemplary damages in the
amount of P25,000.00; and (c) the award of attorneys fees
and litigation expenses is deleted.
Costs against petitioner.
SO ORDERED.