TORTS AND DAMAGES AS OF AUG 28, 2018 1

[G.R. No. L-53401; November 6, 1989] Obligations and Contracts|Fortuitous Events| having been shown, it may not now absolve itself from liability by arguing that the victim’s
death was solely due to a fortuitous event.” When an act of God combines or concurs with
the negligence of the defendant to produce an injury, the defendant is liable if the injury
FACTS: would not have resulted but for his own negligent conduct or omission

A strong typhoon engulfed the province of Ilocos Norte, bringing heavy rains and flooding in Hence, the heirs of Nana Belen, may not be barred from recovering damages caused by
its wake. The deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house petitioner’s negligence.
towards the direction of the Five Sisters Emporium, a commercial establishment. While
wading in waist-deep flood, Nana Belen, in an unfortunate accident, had suffered and died
in a circulatory shock electrocution. An action for damages was instituted by the heirs of the Republic of the Philippines
deceased. Petitioner, on the other hand, contended that the deceased could have died
SUPREME COURT
either by drowning or by electrocution due to negligence attributable only to herself and
not to the electric company. That the deceased installed an electrical wire enclosing the Manila
iron gate and fence to deter the area from burglars.

SECOND DIVISION
ISSUES:

G.R. No. L-53401 November 6, 1989

Whether petitioner may be held liable for the deceased’s death.

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,

HELD:
vs.

While it is true that typhoons and floods are considered Acts of God for which no person
may be held responsible, however, it was through the intervention of petitioner’s
negligence that death took place.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES,
VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.
Herman D. Coloma for petitioner.

Under the circumstances, petitioner was negligent in seeing to it that no harm is done to
the general public “… considering that electricity is an agency, subtle and deadly, the
Glicerio S. Ferrer for private respondents.
measure of care required of electric companies must be commensurate with or
proportionate to the danger. The duty of exercising this high degree of diligence and care
extends to every place where persons have a right to be“. “The negligence of petitioner
 TORTS AND DAMAGES AS OF AUG 28, 2018
PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals'
First Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos
Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead
whereby defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45;
compensatory damages of P50,000.00; exemplary damages of P10,000.00; attorney's fees
of P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the
recognition of their respective versions of the scenario from which the disputed claims
originate. The respondent Court of Appeals (CA) summarized the evidence of the parties as
follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the early
morning of June 29, 1967 a strong typhoon by the code name "Gening" buffeted the
province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake. Between
5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and when the
floodwaters were beginning to recede the deceased Isabel Lao Juan, fondly called Nana
Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero
Street, Laoag City, and proceeded northward towards the direction of the Five Sisters
Emporium, of which she was the owner and proprietress, to look after the merchandise
therein that might have been damaged. Wading in waist-deep flood on Guerrero, the
deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by
the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was
partly owned by the deceased. Aida and Linda walked side by side at a distance of between
5 and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly
sank into the water. The two girls attempted to help, but fear dissuaded them from doing
so because on the spot where the deceased sank they saw an electric wire dangling from a
post and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto dela
Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at
2
four meters away from her he turned back shouting that the water was grounded. Aida and
Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema building which
was four or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been
electrocuted, he acted immediately. With his wife Jane, together with Ernesto and one Joe
Ros, Yabes passed by the City Hall of Laoag to request the police to ask the people of
defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the
party waded to the house on Guerrero Street. The floodwater was receding and the lights
inside the house were out indicating that the electric current had been cut off in Guerrero.
Yabes instructed his boys to fish for the body of the deceased. The body was recovered
about two meters from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio
Juan, Power Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric
Plant, noticed certain fluctuations in their electric meter which indicated such abnormalities
as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag
NPC Compound on an inspection. On the way, he saw grounded and disconnected lines.
Electric lines were hanging from the posts to the ground. Since he could not see any INELCO
lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street by way of
Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric
wire about 30 meters long strung across the street "and the other end was seeming to play
with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO
still closed, and seeing no lineman therein, he returned to the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip.
Having learned of the death of Isabel Lao Juan, he passed by the house of the deceased at
the corner of Guerrero and M.H. del Pilar streets to which the body had been taken. Using
the resuscitator which was a standard equipment in his jeep and employing the skill he
acquired from an in service training on resuscitation, he tried to revive the deceased. His
efforts proved futile. Rigor mortis was setting in. On the left palm of the deceased, Engr.
Juan noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen on the
way. He told them about the grounded lines of the INELCO In the afternoon of the same day,
 TORTS AND DAMAGES AS OF AUG 28, 2018
he went on a third inspection trip preparatory to the restoration of power. The dangling
wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning
that the deceased had been electrocuted. Among the sympathizers was Dr. Jovencio Castro,
Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the
deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin was
grayish or, in medical parlance, cyanotic, which indicated death by electrocution. On the left
palm, the doctor found an "electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28,
1972) or a first degree burn. About the base of the thumb on the left hand was a burned
wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated
the cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its officers and
employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collector-inspector;
Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Through the
testimonies of these witnesses, defendant sought to prove that on and even before June 29,
1967 the electric service system of the INELCO in the whole franchise area, including Area
No. 9 which covered the residence of Antonio Yabes at No. 18 Guerrero Street, did not
suffer from any defect that might constitute a hazard to life and property. The service lines,
devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the
date in question. As a public service operator and in line with its business of supplying
electric current to the public, defendant had installed safety devices to prevent and avoid
injuries to persons and damage to property in case of natural calamities such as floods,
typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a
round-the-clock check-up of the areas respectively assigned to them.
Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on
June 29, 1967, putting to streets of Laoag City under water, only a few known places in
Laoag were reported to have suffered damaged electric lines, namely, at the southern
approach of the Marcos Bridge which was washed away and where the INELCO lines and
posts collapsed; in the eastern part near the residence of the late Governor Simeon Mandac;
in the far north near the defendant's power plant at the corner of Segundo and Castro
Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte
3
National High School. Fabico Abijero, testified that in the early morning before 6 o'clock on
June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to switch off the
street lights in Area No. 9. He did not see any cut or broken wires in or near the vicinity.
What he saw were many people fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to show that
the deceased could not have died of electrocution Substantially, the testimony of the
doctor is as follows: Without an autopsy on the cadaver of the victim, no doctor, not even a
medicolegal expert, can speculate as to the real cause of death. Cyanosis could not have
been found in the body of the deceased three hours after her death, because cyanosis
which means lack of oxygen circulating in the blood and rendering the color of the skin
purplish, appears only in a live person. The presence of the elongated burn in the left palm
of the deceased (Exhibits C-1 and C-2) is not sufficient to establish her death by
electrocution; since burns caused by electricity are more or less round in shape and with
points of entry and exit. Had the deceased held the lethal wire for a long time, the
laceration in her palm would have been bigger and the injury more massive. (CA Decision,
pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the heirs of
the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal,
p. 55, Rollo), petitioner advanced the theory, as a special defense, that the deceased could
have died simply either by drowning or by electrocution due to negligence attributable only
to herself and not to petitioner. In this regard, it was pointed out that the deceased,
without petitioner's knowledge, caused the installation of a burglar deterrent by connecting
a wire from the main house to the iron gate and fence of steel matting, thus, charging the
latter with electric current whenever the switch is on. Petitioner then conjectures that the
switch to said burglar deterrent must have been left on, hence, causing the deceased's
electrocution when she tried to open her gate that early morning of June 29, 1967. After
due trial, the CFI found the facts in favor of petitioner and dismissed the complaint but
awarded to the latter P25,000 in moral damages and attorney's fees of P45,000. An appeal
was filed with the CA which issued the controverted decision.
In this petition for review the petitioner assigns the following errors committed by the
respondent CA:
 TORTS AND DAMAGES AS OF AUG 28, 2018
1. The respondent Court of Appeals committed grave abuse of discretion and error in
considering the purely hearsay alleged declarations of Ernesto de la Cruz as part of the res
gestae.
2. The respondent Court of Appeals committed grave abuse of discretion and error in
holding that the strong typhoon "Gening" which struck Laoag City and Ilocos Norte on June
29, 1967 and the flood and deluge it brought in its wake were not fortuitous events and did
not exonerate petitioner-company from liability for the death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion and erred in not
applying the legal principle of "assumption of risk" in the present case to bar private
respondents from collecting damages from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused its discretion in
completely reversing the findings of fact of the trial court.
5. The findings of fact of the respondent Court of Appeals are reversible under the
recognized exceptions.
6. The trial court did not err in awarding moral damages and attorney's fees to defendant
corporation, now petitioner company.
7. Assuming arguendo that petitioner company may be held liable from the death of the
late Isabel Lao Juan, the damages granted by respondent Court of Appeals are improper
and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of
electrocution; (2) whether or not petitioner may be held liable for the deceased's death;
4
and (3) whether or not the respondent CA's substitution of the trial court's factual findings
for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative. By a
preponderance of evidence, private respondents were able to show that the deceased died
of electrocution, a conclusion which can be primarily derived from the photographed burnt
wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds
undoubtedly point to the fact that the deceased had clutched a live wire of the petitioner.
This was corroborated by the testimony of Dr. Jovencio Castro who actually examined the
body of the deceased a few hours after the death and described the said burnt wounds as a
"first degree burn" (p. 144, TSN, December 11, 1972) and that they were "electrically
charged" (p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo
and Aida Bulong added that after the deceased screamed "Ay" and sank into the water,
they tried to render some help but were overcome with fear by the sight of an electric wire
dangling from an electric post, moving in the water in a snake-like fashion (supra). The
foregoing therefore justifies the respondent CA in concluding that "(t)he nature of the
wounds as described by the witnesses who saw them can lead to no other conclusion than
that they were "burns," and there was nothing else in the street where the victim was
wading thru which could cause a burn except the dangling live wire of defendant company"
(CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased was
electrocuted, if such was really the case when she tried to open her steel gate, which was
electrically charged by an electric wire she herself caused to install to serve as a burglar
deterrent. Petitioner suggests that the switch to said burglar alarm was left on. But this is
mere speculation, not backed up with evidence. As required by the Rules, "each party must
prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly
noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p.
23, Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
 TORTS AND DAMAGES AS OF AUG 28, 2018
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased
during that fateful morning of June 29, 1967. This Court has not been offered any sufficient
reason to discredit the testimonies of these two young ladies. They were one in the
affirmation that the deceased, while wading in the waist-deep flood on Guerrero Street five
or six meters ahead of them, suddenly screamed "Ay" and quickly sank into the water.
When they approached the deceased to help, they were stopped by the sight of an electric
wire dangling from a post and moving in snake-like fashion in the water. Ernesto dela Cruz
also tried to approach the deceased, but he turned back shouting that the water was
grounded. These bits of evidence carry much weight. For the subject of the testimonies was
a startling occurrence, and the declarations may be considered part of the res gestae. (CA
Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be present: (1)
that the principal act, the res gestae, be a startling occurrence; (2) that the statements were
made before the declarant had time to contrive or devise; (3) that the statements made
must concern the occurrence in question and its immediately attending circumstances
(People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959). We do not find any abuse
of discretion on the CA' part in view of the satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence precisely
as an exception to the hearsay rule on the grounds of trustworthiness and necessity.
"Trustworthiness" because the statements are made instinctively (Wesley vs. State, 53 Ala.
182), and "necessity" because such natural and spontaneous utterances are more
convincing than the testimony of the same person on the stand (Mobile vs. Ascraft 48 Ala.
31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not presented to testify
does not make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the
said declaration is part of the res gestae. Similarly, We considered part of the res gestae a
conversation between two accused immediately after commission of the crime as
overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135,
Rollo), Ernesto de la Cruz was not an actual witness to the instant when the deceased sank
into the waist-deep water, he acted upon the call of help of Aida Bulong and Linda Alonzo
Estavillo with the knowledge of, and immediately after, the sinking of the deceased. In fact
5
the startling event had not yet ceased when Ernesto de la Cruz entered the scene
considering that the victim remained submerged. Under such a circumstance, it is
undeniable that a state of mind characterized by nervous excitement had been triggered in
Ernesto de la Cruz's being as anybody under the same contingency could have experienced.
As such, We cannot honestly exclude his shouts that the water was grounded from the res
gestae just because he did not actually see the sinking of the deceased nor hear her scream
"Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While
We concede to the submission that the statement must be one of facts rather than opinion,
We cannot agree to the proposition that the one made by him was a mere opinion. On the
contrary, his shout was a translation of an actuality as perceived by him through his sense
of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by
the private respondents, thus, is presumed to be adverse to them pursuant to Section 5(e),
Rule 131. For the application of said Rule as against a party to a case, it is necessary that the
evidence alleged to be suppressed is available only to said party (People vs. Tulale, L-7233,
18 May 1955, 97 Phil. 953). The presumption does not operate if the evidence in question is
equally available to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil.
421). It is clear from the records that petitioner could have called Ernesto de la Cruz to the
witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel
when she testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept.
1972)
The foregoing shows that petitioner had the opportunity to verify the declarations of
Ernesto de la Cruz which, if truly adverse to private respondent, would have helped its case.
However, due to reasons known only to petitioner, the opportunity was not taken.
 TORTS AND DAMAGES AS OF AUG 28, 2018 6

electrocuted" so he sent one of his men to the place but his man reported back that there
was no damaged wire. (p. 385, Id.) Loreto Abijero, chief lineman of defendant, corroborated
Coming now to the second issue, We tip the scales in the private respondents' favor. The
Engr. Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came to the
respondent CA acted correctly in disposing the argument that petitioner be exonerated
INELCO plant and asked the INELCO people to inspect their lines. He went with Engr. Juan
from liability since typhoons and floods are fortuitous events. While it is true that typhoons
and their inspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975)
and floods are considered Acts of God for which no person may be held responsible, it was
Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29, 1967 the
not said eventuality which directly caused the victim's death. It was through the
typhoon ceased. At that time, he was at the main building of the Divine Word College of
intervention of petitioner's negligence that death took place. We subscribe to the
Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)
conclusions of the respondent CA when it found:

In times of calamities such as the one which occurred in Laoag City on the night of June 28
On the issue whether or not the defendant incurred liability for the electrocution and
until the early hours of June 29, 1967, extraordinary diligence requires a supplier of
consequent death of the late Isabel Lao Juan, defendant called to the witness-stand its
electricity to be in constant vigil to prevent or avoid any probable incident that might
electrical engineer, chief lineman, and lineman to show exercise of extraordinary diligence
imperil life or limb. The evidence does not show that defendant did that. On the contrary,
and to negate the charge of negligence. The witnesses testified in a general way about their
evidence discloses that there were no men (linemen or otherwise) policing the area, nor
duties and the measures which defendant usually adopts to prevent hazards to life and limb.
even manning its office. (CA Decision, pp. 24-25, Rollo)
From these testimonies, the lower court found "that the electric lines and other equipment
of defendant corporation were properly maintained by a well-trained team of lineman,
technicians and engineers working around the clock to insure that these equipments were
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no
in excellent condition at all times." (P. 40, Record on Appeal) The finding of the lower court,
harm is done to the general public"... considering that electricity is an agency, subtle and
however, was based on what the defendant's employees were supposed to do, not on what
deadly, the measure of care required of electric companies must be commensurate with or
they actually did or failed to do on the date in question, and not on the occasion of the
proportionate to the danger. The duty of exercising this high degree of diligence and care
emergency situation brought about by the typhoon.
extends to every place where persons have a right to be" (Astudillo vs. Manila Electric, 55
Phil. 427). The negligence of petitioner having been shown, it may not now absolve itself
from liability by arguing that the victim's death was solely due to a fortuitous event. "When
The lower court made a mistake in assuming that defendant's employees worked around
an act of God combines or concurs with the negligence of the defendant to produce an
the clock during the occurrence of the typhoon on the night of June 28 and until the early
injury, the defendant is liable if the injury would not have resulted but for his own negligent
morning of June 29, 1967, Engr. Antonio Juan of the National Power Corporation affirmed
conduct or omission" (38 Am. Jur., p. 649).
that when he first set out on an inspection trip between 6:00 and 6:30 A.M. on June 29,
1967, he saw grounded and disconnected electric lines of the defendant but he saw no
INELCO lineman. The INELCO Office at the Life theatre on Rizal Street was still closed. (pp.
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in
63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the finding of the
the case at bar. It is imperative to note the surrounding circumstances which impelled the
lower court. Conrado Asis, defendant's electrical engineer, testified that he conducted a
deceased to leave the comforts of a roof and brave the subsiding typhoon. As testified by
general inspection of the franchise area of the INELCO only on June 30, 1967, the day
Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26
following the typhoon. The reason he gave for the delay was that all their vehicles were
Sept. 1972), the deceased, accompanied by the former two, were on their way to the
submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00
latter's grocery store "to see to it that the goods were not flooded." As such, shall We
A.M. on June 30 and after briefing his men on what to do they started out. (p. 338, lbid)
punish her for exercising her right to protect her property from the floods by imputing upon
One or two days after the typhoon, the INELCO people heard "rumors that someone was
 TORTS AND DAMAGES AS OF AUG 28, 2018
her the unfavorable presumption that she assumed the risk of personal injury? Definitely
not. For it has been held that a person is excused from the force of the rule, that when he
voluntarily assents to a known danger he must abide by the consequences, if an emergency
is found to exist or if the life or property of another is in peril (65A C.S.C. Negligence(174(5),
p. 301), or when he seeks to rescue his endangered property (Harper and James, "The Law
of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as
the deceased's property, a source of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident occurred, was at a place where
she had a right to be without regard to petitioner's consent as she was on her way to
protect her merchandise. Hence, private respondents, as heirs, may not be barred from
recovering damages as a result of the death caused by petitioner's negligence (ibid., p. 1165,
1166).
But petitioner assails the CA for having abused its discretion in completely reversing the
trial court's findings of fact, pointing to the testimonies of three of its employees its
electrical engineer, collector-inspector, lineman, and president-manager to the effect that it
had exercised the degree of diligence required of it in keeping its electric lines free from
defects that may imperil life and limb. Likewise, the said employees of petitioner
categorically disowned the fatal wires as they appear in two photographs taken on the
afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked
to the electric post (petitioner's Memorandum, p. 170, Rollo). However, as the CA properly
held, "(t)he finding of the lower court ... was based on what the defendant's employees
were supposed to do, not on what they actually did or failed to do on the date in question,
and not on the occasion of the emergency situation brought about by the typhoon" (CA
Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated above,
petitioner was in fact negligent. In a like manner, petitioner's denial of ownership of the
several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he
nature of the wounds as described by the witnesses who saw them can lead to no other
conclusion than that they were 'burns', and there was nothing else in the street where the
victim was wading thru which could cause a burn except the dangling live wire of defendant
company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts
to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that
when Engineer Antonio Juan of the National Power Corporation set out in the early morning
7
of June 29, 1967 on an inspection tour, he saw grounded and disconnected lines hanging
from posts to the ground but did not see any INELCO lineman either in the streets or at the
INELCO office (vide, CA Decision, supra). The foregoing shows that petitioner's duty to
exercise extraordinary diligence under the circumstance was not observed, confirming the
negligence of petitioner. To aggravate matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about the impending
typhoon, through radio announcements. Even the fire department of the city announced
the coming of the big flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO irregularities
in the flow of electric current were noted because "amperes of the switch volts were
moving". And yet, despite these danger signals, INELCO had to wait for Engr. Juan to
request that defendant's switch be cut off but the harm was done. Asked why the delay,
Loreto Abijero answered that he "was not the machine tender of the electric plant to switch
off the current." (pp. 467-468, Ibid.) How very characteristic of gross inefficiency! (CA
Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the trial
court's findings but tediously considered the factual circumstances at hand pursuant to its
power to review questions of fact raised from the decision of the Regional Trial Court,
formerly the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in private
respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and
P18,229.45 for funeral expenses); P50,000 in compensatory damages, computed in
accordance with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of
P15,000 as average annual income of the deceased; P10,000 in exemplary damages; P3,000
attorney's fees; and costs of suit. Except for the award of P12,000 as compensation for the
victim's death, We affirm the respondent CA's award for damages and attorney's fees.
Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya,
147 SCRA 381), We increase the said award of P12,000 to P30,000, thus, increasing the total
actual damages to P48,229.45.
 TORTS AND DAMAGES AS OF AUG 28, 2018 8

The exclusion of moral damages and attorney's fees awarded by the lower court was
properly made by the respondent CA, the charge of malice and bad faith on the part of
The Antecedents
respondents in instituting his case being a mere product of wishful thinking and speculation.
Award of damages and attorney's fees is unwarranted where the action was filed in good
faith; there should be no penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If
damage results from a person's exercising his legal rights, it is damnum absque injuria Pampanga Sugar Development Company, Inc. (PASUDECO) transports sugarcane from
(Auyong Hian vs. CTA, 59 SCRA 110). Mabalacat and Magalang, Pampanga. When the Mount Pinatubo eruption of 1991 heavily
damaged the national bridges along Abacan-Angeles and Sapang Maragul via Magalang,
Pampanga, it requested permission from the Toll Regulatory Board (TRB) for its trucks to
enter and pass through the North Luzon Expressway (NLEX) via Dau-Sta. Ines from
WHEREFORE, the questioned decision of the respondent, except for the slight modification
Mabalacat, and via Angeles from Magalang, and exit at San Fernando going to its milling
that actual damages be increased to P48,229.45 is hereby AFFIRMED.
factory.[2] The TRB furnished the Philippine National Construction Corporation (PNCC) (the
franchisee that operates and maintains the toll facilities in the North and South Luzon Toll
Expressways) with a copy of the said request for it to comment thereon.[3]
SO ORDERED.

On November 5, 1991, TRB and PASUDECO entered into a Memorandum of Agreement[4]

SECOND DIVISION (MOA), where the latter was allowed to enter and pass through the NLEX on the following
terms and conditions:

[G.R. No. 159270. August 22, 2005]

1. PASUDECO trucks should move in convoy;

PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, petitioner, vs. HON. COURT OF

APPEALS, RODRIGO ARNAIZ, REGINA LATAGAN, RICARDO GENERALAO and PAMPANGA 2. Said trucks will stay on the right lane;
SUGAR DEVELOPMENT COMPANY, INC., CORPORATION, respondents.

3. A vehicle with blinking lights should be assigned at the rear end of the convoy with a sign
DECISION which should read as follows: Caution: CONVOY AHEAD!!!;

CALLEJO, SR., J.: 4. Tollway safety measures should be properly observed;

This is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in 5. Accidents or damages to the toll facilities arising out of any activity related to this
CA-G.R. CV No. 47699 affirming, with modification, the decision of the Regional Trial Court approval shall be the responsibility of PASUDECO;
(RTC) of Manila in Civil Case No. 93-64803.
 TORTS AND DAMAGES AS OF AUG 28, 2018 9

along the NLEX at about 65 kilometers per hour.[12] He was with his sister Regina Latagan,
and his friend Ricardo Generalao; they were on their way to Baguio to attend their
6. PASUDECO shall be responsible in towing their stalled trucks immediately to avoid any
grandmothers first death anniversary.[13] As the vehicle ran over the scattered sugarcane,
inconvenience to the other motorists;
it flew out of control and turned turtle several times. The accident threw the car about
fifteen paces away from the scattered sugarcane.

7. This request will be in force only while the national bridges along Abacan-Angeles and
Sapang Maragul via Magalang remain impassable.
Police Investigator Demetrio Arcilla investigated the matter and saw black and white
sugarcanes on the road, on both lanes, which appeared to be flattened.[14]

PASUDECO furnished the PNCC with a copy of the MOA.[5] In a Letter[6] dated October 22,
1992, the PNCC informed PASUDECO that it interposed no objection to the MOA.
On March 4, 1993, Arnaiz, Latagan and Generalao filed a complaint[15] for damages against
PASUDECO and PNCC in the RTC of Manila, Branch 16. The case was docketed as Civil Case
No. 93-64803. They alleged, inter alia, that through its negligence, PNCC failed to keep and
At around 2:30 a.m. on January 23, 1993, Alex Sendin, the PNCC security supervisor, and his maintain the NLEX safe for motorists when it allowed PASUDECO trucks with uncovered and
co-employees Eduardo Ducusin and Vicente Pascual were patrolling Km. 72 going north of unsecured sugarcane to pass through it; that PASUDECO negligently spilled sugarcanes on
the NLEX. They saw a pile of sugarcane in the middle portion of the north and southbound the NLEX, and PNCC failed to put up emergency devices to sufficiently warn approaching
lanes of the road.[7] They placed lit cans with diesel oil in the north and southbound lanes, motorists of the existence of such spillage; and that the combined gross negligence of
including lane dividers with reflectorized markings, to warn motorists of the obstruction. PASUDECO and PNCC was the direct and proximate cause of the injuries sustained by
Sendin, Ducusin and Pascual proceeded to the PASUDECO office, believing that the pile of Latagan and the damage to Arnaizs car. They prayed, thus:
sugarcane belonged to it since it was the only milling company in the area. They requested
for a payloader or grader to clear the area. However, Engineer Oscar Mallari, PASUDECOs
equipment supervisor and transportation superintendent, told them that no equipment
WHEREFORE, it is respectfully prayed that, after due hearing, judgment be rendered for the
operator was available as it was still very early.[8] Nonetheless, Mallari told them that he
plaintiffs, ordering the defendants jointly and severally:
would send someone to clear the affected area. Thereafter, Sendin and company went back
to Km. 72 and manned the traffic. At around 4:00 a.m., five (5) PASUDECO men arrived, and
started clearing the highway of the sugarcane. They stacked the sugarcane at the side of the
(a) To pay unto plaintiff Rodrigo Arnaiz the sum of P100,000.00 representing the value of
road. The men left the area at around 5:40 a.m., leaving a few flattened sugarcanes
his car which was totally wrecked;
scattered on the road. As the bulk of the sugarcanes had been piled and transferred along
the roadside, Sendin thought there was no longer a need to man the traffic. As dawn was
already approaching, Sendin and company removed the lighted cans and lane dividers.[9]
Sendin went to his office in Sta. Rita, Guiguinto, Bulacan, and made the necessary (b) to pay unto plaintiff Regina Latagan the sum of P100,000.00 by way of reimbursement
report.[10] for medical expenses, the sum of P50,000.00 by way of moral damages, and the sum of
P30,000.00 by way of exemplary damages;

At about 6:30 a.m., Rodrigo S. Arnaiz, a certified mechanic and marketing manager of JETTY
Marketing, Inc.,[11] was driving his two-door Toyota Corolla with plate number FAG 961 (c) To pay unto plaintiffs Rodrigo Arnaiz and Ricardo Generalao the sum of P5,000.00 by
way of reimbursement for medical expenses; and
 TORTS AND DAMAGES AS OF AUG 28, 2018 10

On November 11, 1994, the RTC rendered its decision[25] in favor of Latagan, dismissing
that of Arnaiz and Generalao for insufficiency of evidence. The case as against the PNCC was,
(d) To pay unto the plaintiffs the sum of P30,000.00 by way of attorneys fees; plus the costs
likewise, dismissed. The decretal portion of the decision reads:
of suit.

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

Plaintiffs pray for other reliefs which the Honorable Court may find due them in the
premises.[16]

I. ORDERING defendant PASUDECO:

In its Answer,[17] PNCC admitted that it was under contract to manage the North Luzon
Expressway, to keep it safe for motorists. It averred that the mishap was due to the
1. To pay plaintiff Regina Latagan:
unreasonable speed at which Arnaizs car was running, causing it to turn turtle when it
passed over some pieces of flattened sugarcane. It claimed that the proximate cause of the
mishap was PASUDECOs gross negligence in spilling the sugarcane, and its failure to clear
and mop up the area completely. It also alleged that Arnaiz was guilty of contributory a. P25,000 = for actual damages
negligence in driving his car at such speed.

b. P15,000 = for moral damages

The PNCC interposed a compulsory counterclaim[18] against the plaintiffs and
cross-claim[19] against its co-defendant PASUDECO.
c. P10,000 = for attorneys fees

PASUDECO adduced evidence that aside from it, there were other sugarcane mills in the
area, like the ARCAM Sugar Central (formerly known as Pampanga Sugar Mills) and the P50,000
Central Azucarrera de Tarlac;[20] it was only through the expressway that a vehicle could
access these three (3) sugar centrals;[21] and PASUDECO was obligated to clear spillages
whether the planters truck which caused the spillage was bound for PASUDECO, ARCAM or 2. To pay costs of suit.
Central Azucarera.[22]

II. The case is DISMISSED as to defendant PNCC. No pronouncement as to costs. Its

On rebuttal, PNCC adduced evidence that only planters trucks with PSD markings were counterclaim is, likewise, DISMISSED.
allowed to use the tollway;[23] that all such trucks would surely enter the PASUDECO
compound. Thus, the truck which spilled sugarcane in January 1993 in Km. 72 was on its
way to the PASUDECO compound.[24]
III. The claims for damages of plaintiffs Rodrigo Arnaiz and Ricardo Generalao are hereby
DISMISSED for insufficiency of evidence.
 TORTS AND DAMAGES AS OF AUG 28, 2018
SO ORDERED.[26]
Both the plaintiffs Arnaiz, Latagan and Generalao and defendant PASUDECO appealed the
decision to the CA. Since the plaintiffs failed to file their brief, the CA dismissed their
appeal.[27]
Resolving PASUDECOs appeal, the CA rendered judgment on April 29, 2003, affirming the
RTC decision with modification. The appellate court ruled that Arnaiz was negligent in
driving his car, but that such negligence was merely contributory to the cause of the mishap,
i.e., PASUDECOs failure to properly supervise its men in clearing the affected area. Its
supervisor, Mallari, admitted that he was at his house while their men were clearing Km. 72.
Thus, the appellate court held both PASUDECO and PNCC, jointly and severally, liable to
Latagan. The decretal portion of the decision reads:
WHEREFORE, premises considered, the assailed DECISION is hereby MODIFIED and
judgment is hereby rendered declaring PASUDECO and PNCC, jointly and solidarily, liable:
1. To pay plaintiff Regina Latagan:
a. P25,000 = for actual damages
b. P15,000 = for moral damages
c. P10,000 = for attorneys fees
2. To pay costs of suit.
11
SO ORDERED. [28]
The PNCC, now the petitioner, filed a petition for review on certiorari under Rule 45 of the
Revised Rules of Court, alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN MODIFYING THE DECISION OF THE TRIAL
COURT AND MAKING PETITIONER PNCC, JOINTLY AND [SOLIDARILY], LIABLE WITH PRIVATE
RESPONDENT PASUDECO.[29]
The petitioner asserts that the trial court was correct when it held that PASUDECO should
be held liable for the mishap, since it had assumed such responsibility based on the MOA
between it and the TRB. The petitioner relies on the trial courts finding that only PASUDECO
was given a permit to pass through the route.
The petitioner insists that the respondents failed to prove that it was negligent in the
operation and maintenance of the NLEX. It maintains that it had done its part in clearing the
expressway of sugarcane piles, and that there were no more piles of sugarcane along the
road when its men left Km. 72; only a few scattered sugarcanes flattened by the passing
motorists were left. Any liability arising from any mishap related to the spilled sugarcanes
should be borne by PASUDECO, in accordance with the MOA which provides that accidents
or damages to the toll facilities arising out of any activity related to this approval shall be
the responsibility of PASUDECO.
The petitioner also argues that the respondents should bear the consequences of their own
fault or negligence, and that the proximate and immediate cause of the mishap in question
was respondent Arnaizs reckless imprudence or gross negligence.
The Court notes that the issues raised in the petition are factual in nature. Under Rule 45 of
the Rules of Court, only questions of law may be raised in this Court, and while there are
 TORTS AND DAMAGES AS OF AUG 28, 2018
exceptions to the rule, no such exception is present in this case. On this ground alone, the
petition is destined to fail. The Court, however, has reviewed the records of the case, and
finds that the petition is bereft of merit.
The petitioner is the grantee of a franchise, giving it the right, privilege and authority to
construct, operate and maintain toll facilities covering the expressways, collectively known
as the NLEX.[30] Concomitant thereto is its right to collect toll fees for the use of the said
expressways and its obligation to keep it safe for motorists.
There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault or
negligence of the defendant, or some other person for whose acts he must respond; and (c)
the connection of cause and effect between the fault or negligence of the defendant and
the damages incurred by the plaintiff.[31] 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
pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would do.[32] It also refers to the
conduct which creates undue risk of harm to another, the failure to observe that degree of
care, precaution and vigilance that the circumstance justly demand, whereby that other
person suffers injury.[33] The Court declared the test by which to determine the existence
of negligence in Picart v. Smith,[34] viz:
The test by which to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have used in the same situation?
If not, then he is guilty of negligence. The law here in effect adopts the standard supposed
to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The
12
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 test for 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.[35]
In the case at bar, it is clear that the petitioner 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.[36] The highway
was still wet from the juice and sap of the flattened sugarcanes.[37] 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.
The petitioner cannot escape liability under the MOA between PASUDECO and TRB, since
respondent Latagan was not a party thereto. We agree with the following ruling of the CA:
Both defendants, appellant PASUDECO and appellee PNCC, should be held liable. PNCC, in
charge of the maintenance of the expressway, has been negligent in the performance of its
duties. The obligation of PNCC should not be relegated to, by virtue of a private agreement,
to other parties.
PNCC declared the area free from obstruction since there were no piles of sugarcane, but
evidence shows there were still pieces of sugarcane stalks left flattened by motorists. There
must be an observance of that degree of care, precaution, and vigilance which the situation
 TORTS AND DAMAGES AS OF AUG 28, 2018
demands. There should have been sufficient warning devices considering that there were
scattered sugarcane stalks still left along the tollway.
The records show, and as admitted by the parties, that Arnaizs car ran over scattered
sugarcanes spilled from a hauler truck.[38]
Moreover, the MOA refers to accidents or damages to the toll facilities. It does not cover
damages to property or injuries caused to motorists on the NLEX who are not privies to the
MOA.
PASUDECOs negligence in transporting sugarcanes without proper harness/straps, and that
of PNCC in removing the emergency warning devices, were two successive negligent acts
which were the direct and proximate cause of Latagans injuries. As such, PASUDECO and
PNCC are jointly and severally liable. As the Court held in the vintage case of Sabido v.
Custodio:[39]
According to the great weight of authority, where the concurrent or successive negligent
acts or omission of two or more persons, although acting independently of each other, are,
in combination, the direct and proximate cause of a single injury to a third person and it is
impossible to determine in what proportion each contributed to the injury, either is
responsible for the whole injury, even though his act alone might not have caused the
entire injury, or the same damage might have resulted from the acts of the other
tort-feasor. ...
In Far Eastern Shipping Company v. Court of Appeals,[40] the Court declared that the
liability of joint tortfeasors is joint and solidary, to wit:
It may be said, as a general rule, that negligence in order to render a person liable need not
be the sole cause of an injury. It is sufficient that his negligence, concurring with one or
more efficient causes other than plaintiff's, is the proximate cause of the injury. Accordingly,
where several causes combine to produce injuries, a person is not relieved from liability
13
because he is responsible for only one of them, it being sufficient that the negligence of the
person charged with injury is an efficient cause without which the injury would not have
resulted to as great an extent, and that such cause is not attributable to the person injured.
It is no defense to one of the concurrent tortfeasors that the injury would not have resulted
from his negligence alone, without the negligence or wrongful acts of the other concurrent
tortfeasors. Where several causes producing an injury are concurrent and each is an
efficient cause without which the injury would not have happened, the injury may be
attributed to all or any of the causes and recovery may be had against any or all of the
responsible persons although under the circumstances of the case, it may appear that one
of them was more culpable, and that the duty owed by them to the injured person was not
the same. No actor's negligence ceases to be a proximate cause merely because it does not
exceed the negligence of other actors. Each wrongdoer is responsible for the entire result
and is liable as though his acts were the sole cause of the injury.
There is no contribution between joint tortfeasors whose liability is solidary since both of
them are liable for the total damage. Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting independently, are in combination with
the direct and proximate cause of a single injury to a third person, it is impossible to
determine in what proportion each contributed to the injury and either of them is
responsible for the whole injury. Where their concurring negligence resulted in injury or
damage to a third party, they become joint tortfeasors and are solidarily liable for the
resulting damage under Article 2194 of the Civil Code.
Thus, with PASUDECOs and the petitioners successive negligent acts, they are joint
tortfeasors who are solidarily liable for the resulting damage under Article 2194 of the New
Civil Code.[41]
Anent respondent Arnaizs negligence in driving his car, both the trial court and the CA
agreed that it was only contributory, and considered the same in mitigating the award of
damages in his favor as provided under Article 2179[42] of the New Civil Code. Contributory
negligence is conduct on the part of the injured party, contributing as a legal cause to the
harm he has suffered, which falls below the standard to which he is required to conform for
his own protection.[43] Even the petitioner itself described Arnaizs negligence as
contributory. In its Answer to the complaint filed with the trial court, the petitioner
 TORTS AND DAMAGES AS OF AUG 28, 2018 14

asserted that the direct and proximate cause of the accident was the gross negligence of
PASUDECO personnel which resulted in the spillage of sugarcane and the apparent failure
Orense & Vera for appellant.
of the PASUDECO workers to clear and mop up the area completely, coupled with the
contributory negligence of Arnaiz in driving his car at an unreasonable speed.[44] However, Domingo Imperial for appellees.
the petitioner changed its theory in the present recourse, and now claims that the
proximate and immediate cause of the mishap in question was the reckless imprudence or
gross negligence of respondent Arnaiz.[45] Such a change of theory cannot be allowed.
When a party adopts a certain theory in the trial court, he will not be permitted to change
his theory on appeal, for to permit him to do so would not only be unfair to the other party STREET, J.:
but it would also be offensive to the basic rules of fair play, justice and due process.[46]

This action was instituted jointly by Remigio Rodrigueza and three others in the Court of
IN LIGHT OF ALL THE FOREGOING, the present petition is hereby DENIED for lack of merit. First Instance of the Province of Albay to recover a sum of money of the Manila Railroad
The Decision of the Court of Appeals in CA-G.R. CV No. 47699, dated April 29, 2003, is Company as damages resulting from a fire kindled by sparks from a locomotive engine
AFFIRMED. Costs against the petitioner. under the circumstances set out below. Upon hearing the cause upon the complaint,
answer and an agreed statement of facts, the trial judge rendered judgment against the
defendant company in favor of the plaintiffs and awarded to them the following sums
SO ORDERED. respectively as damages, to wit, (1) to Remigio Rodrigueza, P3,000; (2) to Domingo Gonzaga,
P400; (3) to Cristina Luna, P300; and (4) to Perfecta Losantas, P150; all with lawful interest
from March 21, 1919. From this judgment the defendant appealed.
Republic of the Philippines

SUPREME COURT The facts as appearing from the agreed statement, in relation with the complaint, are to the
effect that the defendant Railroad Company operates a line through the district of Daraga
Manila
in the municipality of Albay; that on January 29, 1918, as one of its trains passed over said
line, a great quantity of sparks were emitted from the smokestack of the locomotive, and
fire was thereby communicated to four houses nearby belonging to the four plaintiffs
EN BANC respectively, and the same were entirely consumed. All of these houses were of light
construction with the exception of the house of Remigio Rodrigueza, which was of strong
materials, though the roof was covered with nipa and cogon. The fire occurred immediately
G.R. No. L-15688 November 19, 1921 after the passage of the train, and a strong wind was blowing at the time. It does not
appear either in the complaint or in the agreed statement whose house caught fire first,
though it is stated in the appellant's brief that the fire was first communicated to the house
REMIGIO RODRIGUEZ, ET AL., plaintiffs-appellees, of Remigio Rodrigueza, from whence it spread to the others.

vs.

THE MANILA RAILROAD COMPANY, defendant-appellant.

 TORTS AND DAMAGES AS OF AUG 28, 2018
In the fourth paragraph of the complaint — which is admitted to be true — it is alleged that
the defendant Railroad Company was conspicuously negligent in relation to the origin of
said fire, in the following respects, namely, first, in failing to exercise proper supervision
over the employees in charge of the locomotive; secondly, in allowing the locomotive which
emitted these sparks to be operated without having the smokestack protected by some
device for arresting sparks; thirdly, in using in its locomotive upon this occasion Bataan coal,
a fuel of known inferior quality which, upon combustion, produces sparks in great quantity.
The sole ground upon which the defense is rested is that the house of Remigio Rodrigueza
stood partly within the limits of the land owned by the defendant company, though exactly
how far away from the company's track does not appear. It further appears that, after the
railroad track was laid, the company notified Rodrigueza to get his house off the land of the
company and to remove it from its exposed position. Rodrigueza did not comply with this
suggestion, though he promised to put an iron roof on his house, which he never did.
Instead, he changed the materials of the main roof to nipa, leaving the kitchen and
media-aguas covered with cogon. Upon this fact it is contended for the defense that there
was contributory negligence on the part of Remigio Rodrigueza in having his house partly
on the premises of the Railroad Company, and that for this reason the company is not liable.
This position is in our opinion untenable for the reasons which we shall proceed to state.
In the first place, it will be noted that the fact suggested as constituting a defense to this
action could not in any view of the case operate as a bar to recovery by the three plaintiffs
other than Remigio Rodrigueza, even assuming that the fire was first communicated to his
house; for said three plaintiffs are in nowise implicated in the act which supposedly
constitutes the defense. In this connection it will be observed that the right of action of
each of these plaintiffs is totally distinct from that of his co-plaintiff, so much so that each
might have sued separately, and the defendant if it had seen fit to do so, might in this case
have demurred successfully to the complaint for misjoinder of parties plaintiff. The fact that
the several rights of action of the different plaintiffs arose simultaneously out of one act of
the defendant is not sufficient of itself to require, or even permit, the joinder of such
parties as coplaintiffs in a single action (30 Cyc., 114) if objection had been made thereto.
Domingo Gonzaga, Cristina Luna, and Perfecta Losantas are therefore entitled to recover
upon the admitted fact that this fire originated in the negligent acts of the defendant; and
the circumstance that the fire may have been communicated to their houses through the
house of Remegio Rodrigueza, instead of having been directly communicated from the
15
locomotive, is immaterial. (See 38 Am. Dec., 64, 77; 1 11 R. C. L., 968-971; Kansas City, etc.
Railroad Co. vs. Blaker, 64 L. R. A., 81 Pennsylvania Railroad Co. vs. Hope, 80 Pa. St., 373; 21
Am. Rep. 100.)
With respect to the case of Remegio Rodrigueza it is to be inferred that his house stood
upon this ground before the Railroad Company laid its line over this course; and at any rate
there is no proof that this plaintiff had unlawfully intruded upon the railroad's property in
the act of building his house. What really occurred undoubtedly is that the company, upon
making this extension, had acquired the land only, leaving the owner of the house free to
remove it. Hence he cannot be considered to have been a trespasser in the beginning.
Rather, he was there at the sufferance of the defendant company, and so long as his house
remained in this exposed position, he undoubtedly assumed the risk of any loss that might
have resulted from fires occasioned by the defendant's locomotives if operated and
managed with ordinary care. But he cannot be held to have assumed the risk of any damage
that might result from the unlawful negligence acts of the defendant. Nobody is bound to
anticipate and defend himself against the possible negligence of another. Rather he has a
right to assume that the other will use the care of the ordinary prudent man. (Philadelphia
and Reading Railroad Co. vs. Hendrickson, 80 Pa. St., 182; 21 Am. Rep., 97.)
In the situation now under consideration the proximate and only cause of the damage that
occurred was the negligent act of the defendant in causing this fire. The circumstance that
Remigio Rodrigueza's house was partly on the property of the defendant company and
therefore in dangerous proximity to passing locomotives was an antecedent condition that
may in fact have made the disaster possible, but that circumstance cannot be imputed to
him as contributory negligence destructive of his right of action, because, first, that
condition was not created by himself; secondly, because his house remained on this ground
by the toleration, and therefore with the consent of the Railroad Company; and thirdly,
because even supposing the house to be improperly there, this fact would not justify the
defendant in negligently destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U.
S., 454; 23 L. ed., 356; Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345, 350.)lawphil.net
The circumstance that the defendant company, upon planting its line near Remigio
Rodrigueza's house, had requested or directed him to remove it, did not convert his
occupancy into a trespass, or impose upon him any additional responsibility over and above
 TORTS AND DAMAGES AS OF AUG 28, 2018 16

what the law itself imposes in such situation. In this connection it must be remembered
that the company could at any time have removed said house in the exercise of the power
Nicolas P. Nonato for appellant.
of eminent domain, but it elected not to do so.
Gellada, Mirasol and Ravena for appellees.

Questions similar to that now before us have been under the consideration of American
courts many times, and their decisions are found to be uniformly favorable to recovery REYES, J.:
where the property destroyed has been placed in whole or in part on the right of way of the
railroad company with its express or implied consent. (L. R. Martin Timber Co. vs. Great
Northern Railway Co., 123 Minn., 423; Ann. Cas., 1915A, p. 496, note; Burroughs vs.
This is an action for damages arising from injury caused by an animal. The complaint alleges
Housatonic R.R. Co., 15 Conn., 124; 38 Am. Dec., 64; 74; Southern Ry. Co. vs. Patterson, 105
that the now deceased, Loreto Afialda, was employed by the defendant spouses as
Va. 6; 8 Ann. Cas., 44.) And the case for the plaintiff is apparently stronger where the
caretaker of their carabaos at a fixed compensation; that while tending the animals he was,
company constructs its line in proximity to a house already built and fails to condemn it and
on March 21, 1947, gored by one of them and later died as a consequence of his injuries;
remove it from its right of way.
that the mishap was due neither to his own fault nor to force majeure; and that plaintiff is
his elder sister and heir depending upon him for support.

From what has been said it is apparent that the judgment appealed from is in all respect in
conformity with the law, and the same is accordingly affirmed, with costs. So ordered.
Before filing their answer, defendants moved for the dismissal of the complaint for lack of a
cause of action, and the motion having been granted by the lower court, plaintiff has taken
this appeal.
Republic of the Philippines

SUPREME COURT
Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:
Manila

The possessor of an animal, or the one who uses the same, is liable for any damages it may
EN BANC cause, even if such animal should escape from him or stray away.

G.R. No. L-2075 November 29, 1949 This liability shall cease only in case, the damage should arise from force majeure or from
the fault of the person who may have suffered it.

MARGARITA AFIALDA, plaintiff-appellant,

The question presented is whether the owner of the animal is liable when damage is caused
vs.
to its caretaker.
BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.
 TORTS AND DAMAGES AS OF AUG 28, 2018
The lower court took the view that under the above-quoted provision of the Civil Code, the
owner of an animal is answerable only for damages caused to a stranger, and that for
damage caused to the caretaker of the animal the owner would be liable only if he had
been negligent or at fault under article 1902 of the same code. Claiming that the lower
court was in error, counsel for plaintiff contends that the article 1905 does not distinguish
between damage caused to the caretaker and makes the owner liable whether or not he
has been negligent or at fault. For authority counsel cites the following opinion which
Manresa quotes from a decision of the Spanish Supreme Court:
El articulo 1905 del codigo Civil no consienta otra interpretacion que la que, clara y
evidentemente, se deriva de sus terminos literales, bastando, segun el mismo, que un
animal cause perjuicio para que nasca la responsibilidad del dueno, aun no imputandose a
este ninguna clase de culpa o negligencia, habida,sin duda, cuenta por el lgislador de que tal
concepto de dueno es suficiente para que arrastre las consecuencias favorables o adversas
de esta clase de propiedad, salvo la exception en el mismo contenida. (12 Manresa,
Commentaries on the Spanish CivilCode, 573.)
This opinion, however, appears to have been rendered in a case where an animal caused
injury to a stranger or third person. It is therefore no authority for a case like the present
where the person injured was the caretaker of the animal. The distinction is important. For
the statute names the possessor or user of the animal as the person liable for "any damages
it may cause," and this for the obvious reason that the possessor or user has the custody
and control of the animal and is therefore the one in a position to prevent it from causing
damage.
In the present case, the animal was in custody and under the control of the caretaker, who
was paid for his work as such. Obviously, it was the caretaker's business to try to prevent
the animal from causing injury or damage to anyone, including himself. And being injured
by the animal under those circumstances, was one of the risks of the occupation which he
had voluntarily assumed and for which he must take the consequences.
17
In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12,
p. 578), the death of an employee who was bitten by a feline which his master had asked
him to take to his establishment was by said tribunal declared to be "a veritable accident of
labor" which should come under the labor laws rather than under article 1905 of the Civil
Code. The present action, however, is not brought under the Workmen's Compensation Act,
there being no allegation that, among other things, defendant's business, whatever that
might be, had a gross income of P20,000. As already stated, defendant's liability is made to
rest on article 1905 of the Civil Code. but action under that article is not tenable for the
reasons already stated. On the other hand, if action is to be based on article 1902 of the
Civil Code, it is essential that there be fault or negligence on the part of the defendants as
owners of the animal that caused the damage. But the complaint contains no allegation on
those points.
There being no reversible error in the order appealed from, the same is hereby affirmed,
but without costs in view of the financial situation of the appellant.
RAKES v ATLANTIC [G.R. No. 1719. January 23, 1907.] M. H., RAKES, plaintiff-appellee, vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
FACTS:
he plaintiff, one of a gang of eight negro laborers in the employment of the defendant, was
at work transporting iron rails from a barge in the harbor to the company's yard near the
malecon in Manila. Plaintiff claims that but one hand car was used in this work. The
defendant has proved that there were two immediately following one another, upon which
were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails
lay upon two crosspieces or sills secured to the cars, but without side pieces or guards to
prevent them from slipping off. According to the testimony of the plaintiff, the men were
either in the rear of the car or at its sides. According to that defendant, some of them were
also in front, hauling by a rope. At a certain spot at or near the water's edge the track
sagged, the tie broke, the car either canted or upset, the rails slid off and caught the
plaintiff, breaking his leg, which was afterwards amputated at about the knee.
 TORTS AND DAMAGES AS OF AUG 28, 2018
ISSUE:
Whether the company is liable
RULING:
Yes. The negligence of the plaintiff, contributing to the accident, to what extent it existed in
fact and what legal effect is to be given it. In two particulars is he charged with
carelessness:
First. That having noticed the depression in the track he continued his work; and
Second.That he walked on the ends of the ties at the side of the car instead of along the
boards, either before or behind it.
The Court ruled that His lack of caution in continuing at his work after noticing the slight
depression of the rail was not of so gross a nature as to constitute negligence, barring his
recovery under the severe American rule. While the plaintiff and his witnesses swear that
not only were they not forbidden to proceed in this way, but were expressly directed by the
foreman to do so, both the officers of the company and three of the workmen testify that
there was a general prohibition frequently made known to all the gang against walking by
the side of the car, and the foreman swears that he repeated the prohibition before the
starting of this particular load. On this contradiction of proof we think that the
preponderance is in favor of the defendant's contention to the extent of the general order
being made known to the workmen. If so, the disobedience of the plaintiff in placing
himself in danger contributed in some degree to the injury as a proximate, although not as
its primary cause.
Distinction must be between the accident and the injury, between the event itself, without
which there could have been no accident, and those acts of the victim not entering into it,
independent of it, but contributing under review was the displacement of the crosspiece or
the failure to replace it. this produced the event giving occasion for damages — that is, the
sinking of the track and the sliding of the iron rails.
1. CIVIL LIABILITY FOR DAMAGES. — In order to enforce the liability of an employer for
injuries to his employee, it is not necessary that a criminal action be first prosecuted against
18
the employer or his representative primarily chargeable with the accident. No criminal
proceeding having been taken, the civil action may proceed to judgment.
2. LIABILITY OF EMPLOYER TO WORKMEN. — The responsibility of an employer to his
employee of a fellow-servant of the employee injured, is not adopted in Philippine
jurisprudence.
3. FELLOW-SERVANT RULE. — Sua cuique culpa nocet. The doctrine known as the
"Fellow-servant rule," exonerating the employer where the injury was incurred through the
negligence of a fellow-servant of the employee injured, is not adopted in Philippine
jurisprudence.
7 Phil. 359 – Civil Law – Torts and Damages – Kinds of Fault
M.H. Rakes was a black man working as a laborer for Atlantic Gulf in the early 1900s. One
day, they were working in the company’s yard and they were transporting heavy rails using
two cars (karitons?); each car carrying the opposite ends of the rails. The cars were pulled
by rope from the front and other workers are pushing the cars from behind. There were no
side guards installed on the sides of the cars but the rails were secured by ropes. The track
where the cars move were also weakened by a previous typhoon. It was alleged that
Atlantic’s foreman was notified of said damage in the tracks but the same were left
unrepaired. While the cars were being moved and when it reached the depressed portion
of the track, and while Rakes was beside one of the cars, the ropes gave in and the rails
slipped thereby crushing his leg and causing it to be amputated. Rakes sued Atlantic Gulf
and he won; he was awarded 5,000 pesos for damages ($2,500).
Atlantic assailed the decision of the lower court alleging that they specifically ordered their
workers to be walking only before or after the cars and not on the side of the cars because
the cars have no side guards to protect them in case the rails would slip. Atlantic also
alleged that Rakes should be suing the foreman as it was him who neglected to have the
 TORTS AND DAMAGES AS OF AUG 28, 2018
tracks repaired; that Rakes himself was negligent for having known of the depression on the
track yet he continued to work.
ISSUE: Whether or not Atlantic is civilly liable.
HELD: Yes. Rakes as per the evidence could not have known of the damage in the track as
it was another employee who swore he notified the foreman about said damage. Further,
his lack of caution in continuing to work is not of a gross nature as to constitute negligence
on his part. On the other hand though, Rakes contributory negligence can be inferred from
the fact that he was on the side of the cars when in fact there were orders from the
company barring workers from standing near the side of the cars. His disobedient to this
order does not bar his recovery of damages though; the Supreme Court instead reduced the
award of damages from 5,000 pesos to 2,500 pesos.
In this case, the SC also elucidated the two kinds of culpa which are:
Culpa as substantive and independent, which on account of its origin arises in an obligation
between two persons not formerly bound by any other obligation; may be also considered
as a real source of an independent obligation (extra-contractual or culpa aquiliana).
Culpa as an incident in the performance of an obligation which cannot be presumed to exist
without the other, and which increases the liability arising from the already existing
obligation (contractual or culpa contractual).
Read full text
NOTE: Today the three kinds of negligence are (derived from Roman Law):
19
Culpa Criminal
Culpa Contractual
Culpa Aquiliana
[G.R. No. 113003. October 17, 1997]
ALBERTA YOBIDO and CRESENCIO YOBIDO, petitioners, vs. COURT OF APPEALS, LENY
TUMBOY, ARDEE TUMBOY and JASMIN TUMBOY, respondents.
DECISION
ROMERO, J.:
In this petition for review on certiorari of the decision of the Court of Appeals, the issue is
whether or not the explosion of a newly installed tire of a passenger vehicle is a fortuitous
event that exempts the carrier from liability for the death of a passenger.
On April 26, 1988, spouses Tito and Leny Tumboy and their minor children named Ardee
and Jasmin, boarded at Mangagoy, Surigao del Sur, a Yobido Liner bus bound for Davao City.
Along Picop Road in Km. 17, Sta. Maria, Agusan del Sur, the left front tire of the bus
exploded. The bus fell into a ravine around three (3) feet from the road and struck a tree.
The incident resulted in the death of 28-year-old Tito Tumboy and physical injuries to other
passengers.
On November 21, 1988, a complaint for breach of contract of carriage, damages and
attorneys fees was filed by Leny and her children against Alberta Yobido, the owner of the
 TORTS AND DAMAGES AS OF AUG 28, 2018
bus, and Cresencio Yobido, its driver, before the Regional Trial Court of Davao City. When
the defendants therein filed their answer to the complaint, they raised the affirmative
defense of caso fortuito. They also filed a third-party complaint against Philippine Phoenix
Surety and Insurance, Inc. This third-party defendant filed an answer with compulsory
counterclaim. At the pre-trial conference, the parties agreed to a stipulation of facts.[1]
Upon a finding that the third party defendant was not liable under the insurance contract,
the lower court dismissed the third party complaint. No amicable settlement having been
arrived at by the parties, trial on the merits ensued.
The plaintiffs asserted that violation of the contract of carriage between them and the
defendants was brought about by the drivers failure to exercise the diligence required of
the carrier in transporting passengers safely to their place of destination. According to Leny
Tumboy, the bus left Mangagoy at 3:00 oclock in the afternoon. The winding road it
traversed was not cemented and was wet due to the rain; it was rough with crushed rocks.
The bus which was full of passengers had cargoes on top. Since it was running fast, she
cautioned the driver to slow down but he merely stared at her through the mirror. At
around 3:30 p.m., in Trento, she heard something explode and immediately, the bus fell
into a ravine.
For their part, the defendants tried to establish that the accident was due to a fortuitous
event. Abundio Salce, who was the bus conductor when the incident happened, testified
that the 42-seater bus was not full as there were only 32 passengers, such that he himself
managed to get a seat. He added that the bus was running at a speed of 60 to 50 and that it
was going slow because of the zigzag road. He affirmed that the left front tire that exploded
was a brand new tire that he mounted on the bus on April 21, 1988 or only five (5) days
before the incident. The Yobido Liner secretary, Minerva Fernando, bought the new
Goodyear tire from Davao Toyo Parts on April 20, 1988 and she was present when it was
mounted on the bus by Salce. She stated that all driver applicants in Yobido Liner
underwent actual driving tests before they were employed. Defendant Cresencio Yobido
underwent such test and submitted his professional drivers license and clearances from the
barangay, the fiscal and the police.
20
On August 29, 1991, the lower court rendered a decision[2] dismissing the action for lack of
merit. On the issue of whether or not the tire blowout was a caso fortuito, it found that the
falling of the bus to the cliff was a result of no other outside factor than the tire blow-out. It
held that the ruling in the La Mallorca and Pampanga Bus Co. v. De Jesus[3] that a tire
blowout is a mechanical defect of the conveyance or a fault in its equipment which was
easily discoverable if the bus had been subjected to a more thorough or rigid check-up
before it took to the road that morning is inapplicable to this case. It reasoned out that in
said case, it was found that the blowout was caused by the established fact that the inner
tube of the left front tire was pressed between the inner circle of the left wheel and the rim
which had slipped out of the wheel. In this case, however, the cause of the explosion
remains a mystery until at present. As such, the court added, the tire blowout was a caso
fortuito which is completely an extraordinary circumstance independent of the will of the
defendants who should be relieved of whatever liability the plaintiffs may have suffered by
reason of the explosion pursuant to Article 1174[4] of the Civil Code.
Dissatisfied, the plaintiffs appealed to the Court of Appeals. They ascribed to the lower
court the following errors: (a) finding that the tire blowout was a caso fortuito; (b) failing to
hold that the defendants did not exercise utmost and/or extraordinary diligence required of
carriers under Article 1755 of the Civil Code, and (c) deciding the case contrary to the ruling
in Juntilla v. Fontanar,[5] and Necesito v. Paras.[6]
On August 23, 1993, the Court of Appeals rendered the Decision[7] reversing that of the
lower court. It held that:
To Our mind, the explosion of the tire is not in itself a fortuitous event. The cause of the
blow-out, if due to a factory defect, improper mounting, excessive tire pressure, is not an
unavoidable event. On the other hand, there may have been adverse conditions on the
road that were unforeseeable and/or inevitable, which could make the blow-out a caso
fortuito. The fact that the cause of the blow-out was not known does not relieve the carrier
of liability. Owing to the statutory presumption of negligence against the carrier and its
obligation to exercise the utmost diligence of very cautious persons to carry the passenger
safely as far as human care and foresight can provide, it is the burden of the defendants to
prove that the cause of the blow-out was a fortuitous event. It is not incumbent upon the
plaintiff to prove that the cause of the blow-out is not caso-fortuito.
 TORTS AND DAMAGES AS OF AUG 28, 2018
Proving that the tire that exploded is a new Goodyear tire is not sufficient to discharge
defendants burden. As enunciated in Necesito vs. Paras, the passenger has neither choice
nor control over the carrier in the selection and use of its equipment, and the good repute
of the manufacturer will not necessarily relieve the carrier from liability.
Moreover, there is evidence that the bus was moving fast, and the road was wet and rough.
The driver could have explained that the blow-out that precipitated the accident that
caused the death of Toto Tumboy could not have been prevented even if he had exercised
due care to avoid the same, but he was not presented as witness.
The Court of Appeals thus disposed of the appeal as follows:
WHEREFORE, the judgment of the court a quo is set aside and another one entered
ordering defendants to pay plaintiffs the sum of P50,000.00 for the death of Tito Tumboy,
P30,000.00 in moral damages, and P7,000.00 for funeral and burial expenses.
SO ORDERED.
The defendants filed a motion for reconsideration of said decision which was denied on
November 4, 1993 by the Court of Appeals. Hence, the instant petition asserting the
position that the tire blowout that caused the death of Tito Tumboy was a caso fortuito.
Petitioners claim further that the Court of Appeals, in ruling contrary to that of the lower
court, misapprehended facts and, therefore, its findings of fact cannot be considered final
which shall bind this Court. Hence, they pray that this Court review the facts of the case.
The Court did re-examine the facts and evidence in this case because of the inapplicability
of the established principle that the factual findings of the Court of Appeals are final and
may not be reviewed on appeal by this Court. This general principle is subject to exceptions
such as the one present in this case, namely, that the lower court and the Court of Appeals
21
arrived at diverse factual findings.[8] However, upon such re-examination, we found no
reason to overturn the findings and conclusions of the Court of Appeals.
As a rule, when a passenger boards a common carrier, he takes the risks incidental to the
mode of travel he has taken. After all, a carrier is not an insurer of the safety of its
passengers and is not bound absolutely and at all events to carry them safely and without
injury.[9] However, when a passenger is injured or dies while travelling, the law presumes
that the common carrier is negligent. Thus, the Civil Code provides:
Art. 1756. In case of death or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755.
Article 1755 provides that (a) common carrier is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances. Accordingly, in culpa contractual, once
a passenger dies or is injured, the carrier is presumed to have been at fault or to have acted
negligently. This disputable presumption may only be overcome by evidence that the
carrier had observed extraordinary diligence as prescribed by Articles 1733,[10] 1755 and
1756 of the Civil Code or that the death or injury of the passenger was due to a fortuitous
event.[11] Consequently, the court need not make an express finding of fault or negligence
on the part of the carrier to hold it responsible for damages sought by the passenger.[12]
In view of the foregoing, petitioners contention that they should be exempt from liability
because the tire blowout was no more than a fortuitous event that could not have been
foreseen, must fail. A fortuitous event is possessed of the following characteristics: (a) the
cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply
with his obligations, must be independent of human will; (b) it must be impossible to
foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be
impossible to avoid; (c) the occurrence must be such as to render it impossible for the
debtor to fulfill his obligation in a normal manner; and (d) the obligor must be free from any
participation in the aggravation of the injury resulting to the creditor.[13] As Article 1174
provides, no person shall be responsible for a fortuitous event which could not be foreseen,
 TORTS AND DAMAGES AS OF AUG 28, 2018
or which, though foreseen, was inevitable. In other words, there must be an entire
exclusion of human agency from the cause of injury or loss.[14]
Under the circumstances of this case, the explosion of the new tire may not be considered a
fortuitous event. There are human factors involved in the situation. The fact that the tire
was new did not imply that it was entirely free from manufacturing defects or that it was
properly mounted on the vehicle. Neither may the fact that the tire bought and used in the
vehicle is of a brand name noted for quality, resulting in the conclusion that it could not
explode within five days use. Be that as it may, it is settled that an accident caused either by
defects in the automobile or through the negligence of its driver is not a caso fortuito that
would exempt the carrier from liability for damages.[15]
Moreover, a common carrier may not be absolved from liability in case of force majeure or
fortuitous event alone. The common carrier must still prove that it was not negligent in
causing the death or injury resulting from an accident.[16] This Court has had occasion to
state:
While it may be true that the tire that blew-up was still good because the grooves of the
tire were still visible, this fact alone does not make the explosion of the tire a fortuitous
event. No evidence was presented to show that the accident was due to adverse road
conditions or that precautions were taken by the jeepney driver to compensate for any
conditions liable to cause accidents. The sudden blowing-up, therefore, could have been
caused by too much air pressure injected into the tire coupled by the fact that the jeepney
was overloaded and speeding at the time of the accident.[17]
It is interesting to note that petitioners proved through the bus conductor, Salce, that the
bus was running at 60-50 kilometers per hour only or within the prescribed lawful speed
limit. However, they failed to rebut the testimony of Leny Tumboy that the bus was running
so fast that she cautioned the driver to slow down. These contradictory facts must,
therefore, be resolved in favor of liability in view of the presumption of negligence of the
carrier in the law. Coupled with this is the established condition of the road rough, winding
and wet due to the rain. It was incumbent upon the defense to establish that it took
precautionary measures considering partially dangerous condition of the road. As stated
22
above, proof that the tire was new and of good quality is not sufficient proof that it was not
negligent. Petitioners should have shown that it undertook extraordinary diligence in the
care of its carrier, such as conducting daily routinary check-ups of the vehicles parts. As the
late Justice J.B.L. Reyes said:
It may be impracticable, as appellee argues, to require of carriers to test the strength of
each and every part of its vehicles before each trip; but we are of the opinion that a due
regard for the carriers obligations toward the traveling public demands adequate periodical
tests to determine the condition and strength of those vehicle portions the failure of which
may endanger the safety of the passengers.[18]
Having failed to discharge its duty to overthrow the presumption of negligence with clear
and convincing evidence, petitioners are hereby held liable for damages. Article 1764[19] in
relation to Article 2206[20] of the Civil Code prescribes the amount of at least three
thousand pesos as damages for the death of a passenger. Under prevailing jurisprudence,
the award of damages under Article 2206 has been increased to fifty thousand pesos
(P50,000.00).[21]
Moral damages are generally not recoverable in culpa contractual except when bad faith
had been proven. However, the same damages may be recovered when breach of contract
of carriage results in the death of a passenger,[22] as in this case. Exemplary damages,
awarded by way of example or correction for the public good when moral damages are
awarded,[23] may likewise be recovered in contractual obligations if the defendant acted in
wanton, fraudulent, reckless, oppressive, or malevolent manner.[24] Because petitioners
failed to exercise the extraordinary diligence required of a common carrier, which resulted
in the death of Tito Tumboy, it is deemed to have acted recklessly.[25] As such, private
respondents shall be entitled to exemplary damages.
WHEREFORE, the Decision of the Court of Appeals is hereby AFFIRMED subject to the
modification that petitioners shall, in addition to the monetary awards therein, be liable for
the award of exemplary damages in the amount of P20,000.00. Costs against petitioners.
TORTS AND DAMAGES AS OF AUG 28, 2018 23

SO ORDERED.